R v Planning Appeal Board; Ex Parte
[1990] TASSC 48
•6 September 1990
Serial No 45/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: R v Planning Appeal Board; Ex parte Loring [1990] TASSC 48; A45/1990
PARTIES: R
v
PLANNING APPEAL BOARD
LORING, ex parte
FILE NO/S: M183/1990
DELIVERED ON: 6 September 1990
JUDGMENT OF: Zeeman J
Judgment Number: 45/1990
Number of paragraphs: 60
Serial No 45/1990
List "A"
File No M183/1990
R v PLANNING APPEAL BOARD; EX PARTE LORING
REASONS FOR JUDGMENT ZEEMAN J
6 September 1990
This is the return of a general order to show cause granted by Wright J on 18 July 1990 pursuant to the provisions of O72, r1A. The order calls upon the Planning Appeal Board to show cause why a Writ of Certiorari or a Writ of Mandamus or further or other relief should not be granted in respect of a determination made by it on 6 June 1990 whereby it dismissed an appeal by the prosecutors.
It is appropriate to observe that it is not strictly correct to say that the Board dismissed the appeal. As will appear, there is some doubt as to what the Board did do. If it did anything, it upheld the appeal to some extent, although in substance, if not in form, its determination amounted to a dismissal of the prosecutors' appeal. Whilst the order nisi was made returnable before a judge in chambers, with the concurrence of counsel I adjourned the hearing of the matter into court, that being appropriate in circumstances such as the present.
No facts were in issue. Substantially the facts were contained in the two affidavits read, supplemented by matters which counsel told me were agreed. Whilst there was no dispute on the facts, a question did arise as to what material I was entitled to take into account, at least in certain events. I will return to that question in due course.
The Planning Appeal Board, by counsel, submitted to whatever order the court might make. It took no further part in the proceedings. The Corporation of the City of Hobart and Messrs Philp, Lighton, Floyd and Beattie were served with the order nisi. Again, they appeared by counsel and acknowledged service, but did not otherwise take part in the proceedings. Sandy Bay Developments Pty Ltd ("the company") appeared by counsel and took part in the proceedings. It had been a respondent to the appeal to the Planning Appeal Board which had resulted in the determination sought to be challenged in these proceedings.
The company was the applicant for planning approval relating to a proposed development affecting premises situate at 236 – 268 Sandy Bay Road, 3 Russell Crescent and part of Russell Crescent at Sandy Bay. The relevant land is governed by the provisions of the Battery Point Planning Scheme 1979, which scheme was sealed by the Commissioner for Town and Country Planning pursuant to s732 of the Local Government Act 1962 on 5 June 1979 to come into effect on that date.
It is common ground between the parties that the application for planning approval was of such a kind that the provisions of s733B of the Act applied to it. It followed that the Corporation was required to have regard to any representations made to it during the period determined pursuant to s733B(5) of the Act. It is agreed that the prosecutors made such representations.
The Corporation granted planning approval, which approval was subject to some 46 conditions. Accordingly, the prosecutors had a right of appeal pursuant to s733C(2) of the Act. That appeal was to the Planning Appeal Board constituted by the Act, and the appeal was required to be in accordance with s733D. That section contains the following subsection:
"733D — (1) A planning appeal shall be instituted by lodging a notice of appeal, as prescribed, with the clerk to the Commissioner."
It should be noted that although the notice of appeal is to be lodged with the clerk to the Commissioner, the Commissioner plays no role in the appeal process, that being entirely within the province of the Planning Appeal Board.
Regulations relating to planning appeals were in force at all relevant times. The relevant regulation is reg9A of the Local Government Regulations 1978, which is in the following terms:
"9A — (1) A notice instituting a planning appeal under section 733D (1) of the Act shall:
(a)specify, in relation to the decision in respect of which the appeal is instituted —
(i) the corporation by which the decision is made;
(ii) the number of the planning application to which the decision relates;
(iii) the nature of the development to which that application relates;
(iv) the nature of the decision;
(v) the name and date of the newspaper in which notice of the decision was published;
(vi) a description of the land to which the decision relates; and
(vii) the name and address of the person who made the planning application to which the decision relates;
(b)set out, in summary form, the grounds of the appeal;
(c)specify a postal address to which communications intended for the person instituting the appeal may be addressed; and
(d)be signed by or on behalf of the person instituting the appeal.
(2) Where a notice lodged in purported compliance with s733D (1) fails to comply with a requirement of subregulation (1), the Planning Appeal Board may, if it is satisfied that that failure is not material to a proper consideration of the subject–matter of the appeal, direct that that requirement be dispensed with."
The respondents purported to appeal. It is agreed that they had a right of appeal. It is further agreed that if the document lodged by them with the clerk to the Commissioner constituted a valid notice of appeal then it was lodged within time.
The document said to constitute the notice of appeal was in the following terms:
"Robert & Margaret Loring
276 Sandy Bay Road,
Sandy Bay, Tas 7005
Telephone 23 2650
13 March 1990Clerk to the Commissioner,
Town & Country Planning,
SBT Building
GPO Box 510E
Hobart Tas 7001
Dear Sir,
Demolition & Supermarket Extension – Shops – Offices
Road Closure – 236268 Sandy Bay Rd. – 3 Russell Cres Sandy Bay.
We wish to lodge an appeal against the decision by Hobart City Council in approving the above development.
We wish to appeal against some of the 46 conditions applied to this approval, we believe our property to be severely affected by the traffic light system in particular, as well as the noise from the service bay area.
Further details of our appeal will be provided when a date for the hearing has been set.
Yours faithfully,
(Mrs) M D Loring. "
It will be observed at once that at least in certain respects that document did not comply with the provisions of reg9A(1). There can be no suggestion that it complied with subparagraphs (ii) and (v) of paragraph (a). One might assume that such non–compliance would readily attract the favourable exercise of the discretion on the part of the Board under subreg(2). However, that is not relevant for present purposes.
On 11 May 1990, the prosecutors, for the first time, instructed solicitors in relation to their planning appeal. There followed a number of meetings between the chairman of the Planning Appeal Board and the legal representatives for the parties to the appeal. The first meeting occurred on 14 May 1990. The chairman referred to this meeting as a "preliminary hearing". At that meeting, the chairman purported to make a number of "rulings". The initial remarks he made are recorded as follows:
"The first thing that needs to be determined is whether it is in fact a competent notice of appeal and my finding is that it is a competent notice of appeal insofar as the grounds in it express, and I find that they are in fact grounds, that there is a severe effecting by the traffic light system as well as by noise from the service bay area and to that extent I would rule that its a competent appeal and therefore exercise any discretion that's [sic] necessary to exercise to accept the notice of appeal."
There followed some exchanges with counsel, at the conclusion of which the chairman said this:
"My understanding of my ruling is that, because you require a ruling, that once the Board is seized of an appeal it has a duty, unless that appeal is otherwise disposed of, to itself dispose of the appeal by making the decision which the Corporation itself ought to make and that therefore there is in fact a (illegible) of appeal that the matters of the specific grounds of appeal in the specific issues raised by the grounds, the appeal are matters which relate to questions of fairness between the parties and question of the proper method of disposing of the appeal and the ancillary matters which may arise out of that rather than being a matter directly affecting the competency of the appeal as a valid appeal. So I rule that the absence of any further grounds do not mean that the Board is entitled or disentitled to hear the appeal de novo and to take up such other issues as appear proper at the time of the hearing."
Section 733G(5) of the Act deals with the constitution of the Planning Appeal Board. The Board must be constituted by three members who satisfy the requirements of paragraph (a) of that subsection, except that it may be constituted as provided for by paragraph (b), which is in the following terms:
"(b)in the case of an appeal that, in the opinion of the Chairman, may properly be heard by the Appeal Board constituted in accordance with this paragraph, by the Chairman, a Deputy Chairman, or a member who is a person qualified and experienced in town and country planning;"
and except in the case of a compulsory conference held pursuant to s733D(3).
The chairman expressly said that he did not consider the appeal to be one which might properly be heard by the Planning Appeal Board constituted by one member only, so that the Act required it to be heard by a Board constituted by three members. It does not appear as though the "preliminary hearing" was a compulsory conference under s733(3). The subject matter discussed was not that appropriate for a compulsory conference. I infer that the chairman did not purport to be conducting a compulsory conference because, if he had done so, s733E(6) would have precluded him from sitting on the hearing of the appeal, whereas he did so sit.
The jurisdiction of the Board can only be exercised by the Board. The Board may only be constituted as is provided for in s733G(5). Clearly, the chairman did not constitute the Board when he held the "preliminary hearing". The Act did not confer upon him any power to make rulings. In particular, he was completely devoid of any jurisdiction to determine whether the appeal was competent or to exercise any discretion. Only the Board could make such a determination or exercise any discretion conferred upon the Board. What the chairman did at the preliminary hearing on 14 May 1990 had no legal effect.
On 17 May 1990, the chairman conducted a further "preliminary hearing". Again, the parties to the appeal were represented. At that meeting, the prosecutors' solicitors handed to the chairman a document entitled "Appellant's Particulars of Grounds of Appeal". This document ran to some four pages, and asserted that the Corporation had failed to give any adequate consideration to 15 specified matters in its consideration of the company's application for planning approval. The discussions held at that meeting were inconclusive, but the chairman expressed the view "that the matter should be dealt with by the full Board and not dealt with as a compulsory conference". This further "preliminary hearing" does not appear to have been a compulsory conference held pursuant to s733D(3) for the same reasons as those which I have expressed in relation to the earlier "preliminary hearing".
On 21 May 1990, the parties appeared before the Board constituted by the chairman and two other members. Some submissions were made, which I infer related to the competency of the prosecutors' appeal to the Board. The parties agreed that the Board should determine three questions, which were put to it in the following terms:
"1Whether the letter dated 13th March 1990 is a purported compliance with section 733D(1) of the Act and, if it is, then whether there is a failure to comply with all or any of the matters specified in Regulation 9A(1).
2In relation to each failure to comply, whether that failure is or is not material to a proper consideration of the subject matter of the appeal.
3In respect of any failures to comply with a requirement of sub–regulation (1) that the Board is satisfied are not material to a proper consideration of the subject matter of the appeal, whether there should be a direction that those requirements should be dispensed with. Each failure to comply should be considered separately."
Later that day, the Board published answers to those questions. Its answers, which I take to constitute a determination by the Board of preliminary matters going to its jurisdiction, were in the following terms:
"QUESTION 1
1.1Insofar as the letter dated the 13th March 1990 specifies the matters 'severely affected by the traffic light system in particular, as well as the noise from the service bay area', there is a purported compliance with section 733(d)(1) (sic) of the Act. In that respect the notice complies with Regulation 9A(1).
1.2The statement 'Further details of our appeal will be provided when a date for the hearing has been set' is not a compliance.
QUESTION 2
The failure to comply referred to in 1.2 above is material to a proper consideration of the subject matter of the appeal.
QUESTION 3
3.1There are no failures to comply with 9A(1) relating to the grounds of appeal, which are not material.
3.2The failure to comply referred to in 1.2 above is material to the proper consideration of the appeal.
4The appellants have sought to extend the grounds of appeal beyond those specified above. In the exercise of its discretion in the circumstances of this appeal, the Board regards it as unjust to allow that extension. The only issues which the Board will allow the appellants to raise at the hearing will be the effect of traffic as affected by the traffic light system, and noise from the service bay area.
5The appellants' application for an adjournment of the hearing from the 28th May 1990, is refused."
Senior counsel for the company argued that the Board had significantly misunderstood the questions, and had misconceived the effect of reg9A. Upon the basis of what the Board said in paragraph 4 of the answers (which did not respond to any of the formal questions asked but which appears to have arisen out of submissions made to the Board) counsel for the prosecutors submitted that the Board misconceived the nature of the discretion it was required to exercise. It is necessary to examine both those submissions. They directly arise out of the first ground stated in the order nisi which asserts that the Board entered upon the hearing of the appeal without first deciding whether it had jurisdiction.
The first question which needs to be determined is whether the effect of s733D(1) is that an appeal purportedly instituted under that provision is only effective if it satisfies the requirements of reg9A(1), subject to the exercise of any discretion under reg9A(2). Whilst no express concessions were made, both counsel appeared to proceed upon the basis that the provisions of s733D(1) were mandatory and not directory. As to the difficulties in determining whether a particular enactment is mandatory or directory, reference might be made to Pemberton v The Attorney–General [1978] Tas SR 1. Despite attempts to formulate principles to be applied in determining whether the provisions of a particular enactment are directory or mandatory in nature, it is impossible to lay down a general rule (see Liverpool Borough Bank v Turner (1861) 30 LJ Ch 379, per Lord Campbell at p380).
Section 733D(1) confers a statutory right of appeal which would not exist in the absence of the statute. It prescribes the way in which the right of appeal is to be exercised. Normally it is appropriate to imply into such a provision that the right of appeal cannot be exercised in any other way.
In the following passage from Craies on Statute Law 7th edn at pp264–265, this principle is referred to in the following terms:
"In Viner's Abr the following rule is laid down: 'Every statute limiting anything to be in one form, although it be spoke in the affirmative, yet includes in itself a negative'; and in Bacon's Abr the rule is given that 'if an affirmative statute which is introductive of a new law direct a thing to be done in a certain way, that thing shall not, even if there be no negative words, be done in any other way'."
That confirms my view that s733D(1) is mandatory so that a planning appeal may be instituted by lodging a notice of appeal as prescribed with the clerk to the Commissioner and in no other manner.
The first of the questions posed to the Board clearly asked the Board to determine as a preliminary matter whether the purported notice of appeal lodged by the prosecutors complied with all the provisions of reg9A(1). The Board, in its response to that question, which I conclude was a determination by the Board on a preliminary matter going to its jurisdiction, did not in terms direct its mind to that question. It did no more than to determine that the letter set forth two grounds of appeal. The Board in the terms of its determination did not direct its mind to any of the other requirements of the subregulation. The Board's conclusion, that the statement referred to in paragraph 1.2 of its answers was not a compliance, is difficult to follow. The Board was not called upon to consider whether or not any particular passage in the letter complied with the subregulation. It was required to consider whether the letter complied with the subregulation so as to constitute a valid notice of appeal. The subregulation is not framed in terms which prohibit the inclusion within a notice of appeal of material other than that provided for in the subregulation. The regulation prescribes minimum requirements as to the content of a notice of appeal. Once those minimum requirements have been satisfied, it matters not that the notice contains other material.
Had the Board correctly directed itself in considering question 1, it would inevitably have had to come to the conclusion that the requirements of subparagraphs (ii) and (v) of regulation 9A(1)(a) were not satisfied by the purported notice of appeal.
The answers provided by the Board in response to questions 2 and 3 disclose a misunderstanding on the part of the Board of the requirements of subreg(2). That subregulation required the Board to do the following:
(a)To determine whether the particular document answered to the description of being "a notice lodged in purported compliance with s733D(1) of the Act". It is implicit from what the Board did that it was satisfied that the document lodged by the prosecutors did answer to that description.
(b)To determine whether that document failed to comply with any, and if so which, of the requirements of subreg(1).
(c)If it found that the document failed to comply with any of the requirements of subreg(1), to determine, as to each such failure, whether or not it was satisfied that such failure to comply was not material to a proper consideration of the subject matter of the appeal.
(d)If the Board concluded, as to any failure to comply, that such failure was not material to a proper consideration of the subject matter of the appeal, to determine whether in the exercise of its discretion it would direct that that requirement be dispensed with.
If the Board were to conclude as to any failure to comply, that it was not satisfied that such failure was not material to a proper consideration of the subject matter of the appeal, the Board had no further discretion to exercise. In that event, there would be no appeal. The failure to comply with subreg(1) would result in there not being any appeal within the meaning of s733D.
The Board erred in a number of respects. Having determined that the letter set forth grounds of appeal as required by reg9A(1)(b), there was no occasion for it to consider any material contained in the letter which related to other possible grounds of appeal. Once a notice of appeal sets forth some grounds of appeal, it matters not that the appellant may have in mind a desire to raise other grounds. The right of appeal conferred by s733C is "against the grant of the approval". Persons in the position of the prosecutors have no right of appeal against a condition, or against a particular portion or aspect of a grant of planning approval. The appeal is against the grant itself. In order to appeal against that grant of approval, there must be a notice of appeal which inter alia sets out the grounds of appeal. This means that if the notice sets out one or more grounds of appeal, it complies with that particular requirement. Whether or not the ambit of the appeal is limited by the grounds stated is a different question, with which I will deal in the context of considering the nature of the appeal.
If the Board is to be taken as having concluded that there was a failure to comply with reg9A(1)(b), then it was plainly wrong. It appears to have said that there was such a failure. On the other hand the Board proceeded to a hearing on the merits, at least to some extent, which is indicative of the Board having concluded that any failure was not material to a proper consideration of the subject matter of the appeal. Yet the express conclusion contained in answer 3.1 is inconsistent with it having been open to the Board to proceed to a hearing upon the merits.
As I have indicated, there were other respects in which plainly the notice did not comply with reg9A(1)(a). Those matters were not addressed by the Board in its answers. It did not expressly make any of the findings which it was required to make. In terms, the answers given by the Board did not purport to direct that any requirement which had not been complied with be dispensed with. The Board confined itself to one purported non–compliance, which I have found was not a non–compliance, but completely ignored the other respects in which there was clear non–compliance. In fairness to the Board, it might be said that the other failures to comply would probably have been considered to be of little, if any, significance and incapable of affecting a proper consideration of the subject matter of the appeal.
The question is whether, despite the limited nature of the answers to questions provided by the Board, I can infer that it did properly proceed under subreg(2) and that it is to be taken as having directed that those requirements of subreg(1), which were not complied with, be dispensed with. Certainly, the Board did not say so. On the other hand, the Board proceeded to a hearing on the merits, apparently without objection from any party.
The reasons for the Board's decision incorporated in a document entitled "Judgment" makes reference to a preliminary hearing in the following terms:
"At a preliminary hearing the appellants made application to enlarge the grounds of their appeal, so as to include a comprehensive range of planning matters.
The Board in the exercise of its discretion, determined that it would be unjust as between the parties to allow the enlargement sought, having regard to all of the relevant circumstances."
I assume that this was intended to be a reference to paragraph 4 of the Board's response to the questions submitted to it. I do not understand the materials before me to disclose any application on the part of the prosecutors to extend the grounds of appeal, although it may be that the Board proceeded upon the basis that there had been such an application.
The Board had no such discretion. The ambit of the appeal was to be determined by reference to the notice of appeal. I deal with the question as to what that ambit was in the context of considering the nature of the appeal. Whatever the ambit was, the Board had no discretion to exercise as to that. The ambit was determined once and for all once the purported notice to appeal was lodged, subject to there being a favourable exercise of the Board's discretion under subreg(1).
For the reasons I have given, I conclude that the Board did have a discretion which it was required to exercise under reg9A(2). Its answers to the questions record how it purported to exercise that discretion. For the reasons I have indicated, it did not consider the right questions in dealing with the provisions of subreg(2) and it did not exercise the discretion it had. In all the circumstances, I do not consider the fact that the Board embarked upon a hearing on the merits to be sufficient to enable one to rely upon the maxim omnia praesumuntur rite esse acta. The position might have been different if the Board had proceeded to embark upon a hearing of the appeal on the merits without objection, without having expressly embarked upon a consideration of reg9A and without having come to some express conclusions as to the matters relevant to that regulation. In this case, the questions which the Board was asked to consider and determine as a preliminary matter clearly required it to give consideration to the questions which it was required to determine as a matter of law under reg9A. Its answers demonstrate that it did not consider the correct matters.
The locus standi of the prosecutors as appellants before the Board was dependent upon the Board exercising its discretion in favour of the prosecutors pursuant to reg9A(2). It was therefore the duty of the Board, at the outset, to arrive at a decision thereon (see Rogers v Special Town and Country Planning Appeal Board ([973] 1 NZLR 529, per Turner p at p537). It could only exercise its discretion after it had reached certain conclusions. If it reached different conclusions, then the exercise of a discretion did not arise and the prosecutors would have had no locus standi as appellants. The answers to the questions provided by the Board plainly show that the Board misdirected itself as to how it ought to go about exercising its discretion. Any rule which might be derived from R. v Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313 can have no application in circumstances such as the present (see also Hutchison v The Architects Registration Board (1925) 35 CLR 404). The Board had no jurisdiction to hear the purported appeal because the pre–condition for there being a valid appeal, namely a favourable exercise of its discretion under reg9A(2) had not occurred. The Board was required to consider whether the prerequisites for the existence of the discretion existed and, if they did, to exercise its discretion. It did none of those things.
I turn now to consider the nature of the appeal. The prosecutors assert that the Board completely misunderstood the nature of the appeal to it. Whilst the question as to whether there was a valid appeal by the prosecutors is yet to be determined by the Board, it is desirable that the course adopted by the Board be examined so that it can have the benefit of all necessary directions in law. Appeals to the Planning Appeal Board are from determinations of municipal councils. Those determinations are in the nature of being made by an executive authority. As to that type of appeal, the dictum of Jordan CJ in Ex Parte Australian Sporting Club Ltd re Dash (1947) 47 SR(NSW) 283 is often cited:
"The word 'appeal' may be used in two connections. It may refer to an appeal from one judicial tribunal to another; such an appeal may be an appeal stricto sensu or an appeal by way of rehearing, in which latter case the jurisdiction exercised by the appellate tribunal is in part original; or the word may refer to an appeal from an executive authority to some other executive authority or to a Court. If such an appeal is to a Court, the jurisdiction which it exercises is not appellate but original: Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 181; McCaughey v Commissioner of Stamp Duties (1945) 46 SR(NSW) 192 at 207.
In the present case the appeal is from a decision of an executive authority to a Court which pro hac vice is authorised to exercise a jurisdiction which is both executive and original. This being so, the magistrate was not restricted to examining the material which the Commissioner had before him, but was entitled and required to consider such relevant material as the parties desired to produce."
That dictum has been approved by judges of this court on various occasions (see R. v Oldham; ex parte Registrar of Motor Vehicles [1966] Tas SR 80 at p83; R. v Town and Country Planning Commissioner; ex parte Scott [1970] Tas SR 154 at p169 and Sportsman's Hall Hotel Pty Ltd v Commissioner of Stamp Duties Serial No 3/1990 at p2 ([1990] Tas R 21)) and was considered by Mason J, expressing the view of the majority of the court, in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, where his Honour said at p621:
"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 this effect. Despite some suggestion in argument to the contrary, I do not read Ex parte Australian Sporting Club Ltd; Re Dash as enunciating such an absolute rule. 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 and I exclude for present purposes the case of an appeal to a federal court exercising the judicial power of the Commonwealth under Ch III of the Commonwealth Constitution. The nature of the proceeding 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 or 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 a transcript record; 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.
But in the end the answer will depend on an examination of the legislative provisions rather than upon an endeavour to classify the administrative authority as one which is entrusted with an executive or quasi–judicial function, classifications which are too general to be of decisive assistance. Primarily it is a question of elucidating the legislative intent, a question which in the circumstances of this case is not greatly illuminated by the Delphic utterance that the appeal is by way of rehearing."
In Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281, Glass JA. set forth no fewer than six types of proceedings each of which might, at least in general terms, be described as being an appeal. However, some of those categories might be described as appeals only in the loosest of terms, and in any event, their existence does not assist in the disposition of the present proceedings.
Ultimately, the matter is to be resolved by way of a construction of the legislative scheme. Both counsel were agreed that the Planning Appeal Board was charged with a duty of determining the matter de novo, or, in other words, that it was exercising an original jurisdiction conferred upon it. Where counsel parted company was on the question as to what it was that the Board was to determine de novo. I think it is plain, having regard to the statutory provisions, that the Board is required to hear an appeal de novo. Counsel for the prosecutors submitted that that required the Board to determine the company's application for planning approval as if it were in effect the Hobart City Council first considering the application. On the other hand, senior counsel for the company submitted that on a proper construction of the relevant sections, the grounds of appeal set forth in the notice of appeal limited the issues which fell to be determined by the Board and that those issues, and nothing else, were to be determined de novo.
The Board adopted neither of those courses. Whilst its reasons record that the appeal was restricted to the grounds set forth in the notice of appeal, the Board also recorded that it raised another matter, namely the effect of traffic noise from a proposed exit road upon nearby residences in Ashfield Street. It clearly had regard to that matter, which was not raised in the prosecutors' notice of appeal, because it determined that an additional condition ought to be imposed on the relevant planning approval. It seems that the Board took the view that the prosecutors could only raise matters relating to the two specific matters raised in their notice of appeal, but that the Board had a discretion to raise other matters related to the proposed development in respect of which planning approval was sought.
The right of appeal which the prosecutors sought to exercise was that conferred by s733C(2) of the Act. In its terms, it is a right to "appeal against the grant of the approval." "The approval" is a planning approval which is defined in s733A as meaning "any permit, approval or consent required by a planning scheme or interim order to be issued or given by a corporation in respect of the development of any land". The relevant approval appears to be constituted by the City of Hobart's letter dated 28 February 1990 addressed to Philp, Lighton, Floyd and Beattie which is headed "planning approval" and which in its terms stated:
"The council has granted, subject to the condition(s) shown below, planning approval for demolition, supermarket extension, shops and offices and road closure on 236–244, plus 246–268 Sandy Bay Road, 3 Russell Crescent plus part of Russell Crescent."
After explaining some aspects of the legal effect of the approval and referring to appeal rights, the letter then sets forth under the heading "condition(s) of approval" 46 numbered paragraphs, some of which were divided into several sub–paragraphs.
Of particular relevance to the prosecutors' appeal were the conditions numbered 8 and 24, which were in the following terms:
"8 Noise Mitigation.
(a)A detailed plan showing proposed means of noise mitigation (structures and insulation) shall be submitted to the Director of Planning and Development for his approval prior to approval of working drawings. The areas of particular concern are the loading area and the proposed link road in the vicinity of 14, 16, 18 Ashfield Street.
24The design of the service vehicle area entry/exit arrangement is to be as follows:
(i)Incoming vehicles from the north – via Sandy Bay Road service vehicle entry.
(ii)Incoming vehicles from the south – via car park access roadway to service vehicle area.
(iii)Exiting vehicles, southbound – via car park access roadway through proposed signalised intersection with Sandy Bay Road.
(iv)Exiting vehicles, northbound – via car park access roadway through proposed signalised intersection with Sandy Bay Road."
The powers of the Board on an appeal are provided for in s733C(3) which is in the following terms:
"Where an appeal is brought under this section, the Appeal Board may allow or dismiss the appeal, or may reverse or vary any part of the decision of the corporation, whether the appeal relates to that part thereof or not, so that the effect of its decision is that which it is of opinion should have been the decision of the corporation on the application to which the appeal relates."
That subsection may be thought to create some difficulty. On the one hand it may be considered to admit to the possibility of an appeal relating to part of a decision of the Corporation (which may support the company's argument). On the other hand, it is plain that the Board has the power to reverse or vary a part of the decision to which the appeal does not relate (which may support the argument for the prosecutors). There is no provision for persons in the position of the prosecutors to appeal against part of a decision. They may appeal against the grant of the approval and against nothing else. In my view, the reference to a part of a decision of the corporation is only relevant to an appeal under s733C(1) where the corporation grants planning approval, subject to conditions, and the applicant for that approval appeals, not against the grant of the approval but as to conditions imposed upon that approval.
Senior counsel for the company relied upon the provisions of subs(3), (3A), (3B) and (3C) (all of which were inserted by the Local Government Amendment (Development and Building) Act 1985) as being indicative of a legislative scheme whereby planning appeals could be limited to certain issues so that the Board would be entitled or required to deal only with the specific issues raised. Certainly I accept the submission that if the parties to a planning appeal are all present at a compulsory conference held pursuant to those provisions and reach agreement as to the disposition of the appeal, then the appeal is to be disposed of in the manner agreed. I reject the argument advanced on behalf of the prosecutors that there remains some public element by reason of which the Board still retains some discretion.
However, I do not accept the primary submission made on behalf of the company. I derive no assistance from the nature of the documents which the chairman is required to examine under subs(3). As to paragraph (a) of subs(3C) (which is the provision upon which the submission for the company is principally based), I do not consider that it has the effect or evinces the legislative intent contended for. I do not consider that paragraph to be in any way inconsistent with an appeal which is entirely de novo. A variety of matters might conveniently be agreed upon at such a conference consistently with the appeal being an appeal entirely de novo. Without attempting to catalogue what might be the subject of agreement at such a conference, I instance a statement of agreed facts, an agreement that the proof of an expert witness may be tendered without that witness being available as a witness, an agreement that an agreed bundle of documents go before the Board, or an agreement that a particular preliminary issue as to jurisdiction be determined prior to the Board embarking upon the appeal proper.
I do not derive any assistance from s733D(7) of the Act. It may be that "the subject of the appeal" therein referred to is the same as "the subject matter of the appeal" referred to in s733D(3). However, the subject matter of the appeal can only be the grant of approval referred to in s733C(2). The Act does not require the notice of appeal to be in any particular form or to contain any particular material. That is left to the regulation–making power. There is no obligation on the part of the regulation–making authority to prescribe that the grounds of appeal be specified. Merely because it has chosen to do so matters not. The regulation is capable of being amended to delete this requirement. It is open to the Board under reg9A(2) to dispense with the requirement to specify the grounds of appeal. I do not consider that the nature of the appeal can be determined by reference to the regulations made under it. (See In reK. R. Wood & Co [1962] Tas SR 227 and Electrolytic Zinc Co of Australasia v Emmerton [1971] Tas SR 385 (NC 23)).
I do not derive any assistance from the judgments in Bopark Building (No 8) Pty Ltd v The Minister (1968) 3 NSWR 183. The court there was concerned in considering what was the "issue for determination" on an appeal which was to be heard de novo. What it said followed from its conclusion that the issue for determination was of a limited nature. It does not assist in the present case where the statutory right of appeal is limited to being one which is against the grant of the approval. Once the jurisdiction of the Board has been invoked by an appeal instituted in accordance with the provisions of the Act and the regulations made under it (which may require an exercise of the Board's discretion in favour of the appellant), the appeal is an appeal against the whole of the decision of the corporation and it is incumbent upon the Board to redetermine the application on the part of the applicant to the municipal corporation de novo. It is akin to what was the quarter sessions appeal in respect of which Cave J in R. v The Justices of Surrey [1892] 2 QB 719 at p722 said:
"But in appeals to quarter sessions the evidence in the Court below is not before the quarter sessions. They have no right to depend upon the mere words of the judgment. It is the very thing appealed against. The respondent must begin, and must prove the matters complained of. The Court must decide upon the evidence brought before them on the appeal. There is nothing except that evidence to show that any offence has been committed. When the judgment of the Court below is complained of, and not the verdict, the Court to which the appeal is brought may think that technically an offence has been committed; but until evidence is given they cannot tell whether this or that sentence ought to be given. It is for the respondent to give evidence to shew what the facts in the case are, so as to enable the Court to give the judgment which it is asked to give."
It should be noted that that was a case where the only ground of appeal specified in the notice was that the sentence was excessive, but the Divisional Court held that before the matter of sentence could be dealt with, the court of quarter sessions ought to have heard all the evidence again because it was incumbent upon the respondent to first support the conviction upon the merits.
In the present case, the Board prevented the appellants from ventilating many of the matters which they wished to raise and which had been foreshadowed in the document handed up by their counsel at one of the preliminary conferences. It declined to hear evidence which the prosecutors sought to call. It did so upon the basis that such evidence did not relate to the grounds specified in the notice of appeal.
The Board determined that the "appeal was ... restricted to the questions set out in the notice of appeal, that is the effect of a traffic light system and noise as each affected the appellants' residence." It follows from what I have said that that determination was wrong. It proceeded upon an erroneous understanding of the nature of the appeal. Assuming that jurisdiction had been established the Board was required to redetermine the company's application afresh and the prosecutors were entitled to fully participate in the appeal without being limited in the way the Board held that they were.
In these reasons, I have not dealt with the grounds (b), (e) and (f) specified in the order nisi. I do not consider it necessary or appropriate to do so, except to say that I have doubts as to whether or not those grounds are well founded, at least upon the material before me. In summary, my conclusions are as follows:
(a)Prima facie the Board had no jurisdiction to hear the "appeal" instituted by the prosecutors. It could only obtain jurisdiction provided that it exercised its discretion in favour of the prosecutors pursuant to reg9A(2).
(b)The Board has yet to arrive at the necessary conclusions of fact referred to in reg9A(2) which facts must exist before the Board has any discretion to exercise.
(c)It follows that the Board was entirely without jurisdiction to embark upon the hearing of the appeal on the merits.
(d)The Board misunderstood the nature of the appeal which, if the Board had had jurisdiction to hear it on the merits, would have resulted in the Board effectively having declined to exercise the jurisdiction which it possessed and was obliged to exercise.
It is appropriate that I mention in passing that it was entirely inappropriate for the Board to proceed in the way in which it did by declining to consider whether it had jurisdiction to entertain the appeal and then reaching a tentative conclusion as to the appropriate disposition of the appeal in the event that it had jurisdiction. In each case the Board must determine any issue as to its jurisdiction properly raised before it. A municipal corporation is obliged to give effect to a determination of the Board (s733C(4)). One wonders what a corporation is expected to do with a determination of the Board which is expressed to have been made on the assumption that the Board has jurisdiction but without deciding the matter.
The errors on the part of the Board go to jurisdiction and result in its determination, such as it was, being an illegal determination. Argument was addressed to me as to what is the "determination" for the purposes of s75(12)(b) of the Supreme Court Civil Procedure Act 1932. Without determining the matter, I should say that I am far from persuaded that that expression should be limited in the way contended for on behalf of the company, i.e. that it only encompassed the last two paragraphs of the Board's "judgment". I consider that the Board's answers to the questions put to it on 21 May 1990 clearly constitute part of the determination. Other portions of the "judgment" expressing conclusions may also form part of the determination. The submission made on behalf of the company may not give full effect to the provisions of s75(7) of that Act, and the proceeding subsections of s75.
However, I do not need to express any concluded view on this matter. It only goes to the question as to whether or not the prosecutors are entitled to certiorari as a matter of right under paragraph (b) of s75(12) or whether the remedy is discretionary under paragraph (c). In my view, the conduct of the prosecutors has not been such as to disentitle them in the terms of paragraph (c). If they need to rely upon anything appearing other than on the face of the determination, I would, in any event, exercise my powers under paragraph (c).
In my view, certiorari should go to bring up the determination of the Planning Appeal Board and to have the same quashed for illegality. It is also appropriate for mandamus to issue requiring the Board to hear and determine the prosecutors' purported appeal to it according to law. That will involve the Board properly exercising its discretion under reg9A(2) and, if the discretion is wholly exercised in favour of the prosecutors, a hearing of the appeal on the merits in accordance with these reasons. Whilst I do not propose making any order to this effect, I express the view that there may be merit in the submission made by counsel for the prosecutors that the appeal should be dealt with by a Board constituted by members who have not earlier sat on the appeal, if that is practicable.
I will hear counsel as to the precise form of the orders.
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