R v Resource Planning and Development Commission; Ex Parte Aquatas Pty Ltd
[1998] TASSC 82
•9 July 1998
82/1998
PARTIES: R
v
RESOURCE PLANNING AND DEVELOPMENT COMMISSION
AQUATAS PTY LTD, Ex parte
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M 48/1998
DELIVERED: 9 July 1998
HEARING DATE/S: 29 April 1998
JUDGMENT OF: Cox CJ
CATCHWORDS:
Local Government - Town planning - General matters - Planning schemes and instruments and like matters - Tasmania - Whether Commission gave final approval contrary to Land Use Planning and Approvals Act 1993, s41B to altered amendments by indicating that alterations would be approved - Whether Commission erred in ruling changes were modifications and not "alterations to a substantial degree" - Whether Commission failed to have regard to State Policies in approving amendments to planning scheme.
Land Use Planning and Approvals Act 1993 (Tas), ss31 - 43.
State Policies and Projects Act 1993 (Tas), s11.
Bernard Rothschild Pty Ltd v City of Melbourne (1982) 52 LGRA 442; Addicoat v Fox (No 2) [1979] VR 347; Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259; Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455, applied.
Balmain Association Incorporated v Planning Administrator for the Leichhardt Council (1991) 25 NSWLR 615, distinguished.
Aust Dig Local Government [161]
REPRESENTATION:
Counsel:
Prosecutor: A C R Spence
Respondent: S P Estcourt
Solicitors:
Prosecutor: Page Seager
Respondent: Hand Ogilvie & Breheny
Judgment category classification:
Court Computer Code:
Judgment ID Number: 82/1998
Number of pages: 13
Serial No 82/1998
File No M48/1998
THE QUEEN v
RESOURCE PLANNING AND DEVELOPMENT COMMISSION
Ex parte AQUATAS PTY LTD
REASONS FOR JUDGMENT COX CJ
9 July 1998
This is the return of an order nisi that a general order issue to the respondent Commission to show cause:
"(a)Why a writ of certiorari or further or other relief should not be granted to remove into this Court and quash the decision of the Resource Planning and Development Commission made on the 4th day of February 1998 by which final approval was given to amendments Q1, Q2, Q3, after making amendments to Q2 and Q3.
(b)Why a writ of mandamus or further or other orders should not be granted to direct the Resource Planning and Development Commission to hear and determine the application in accordance with law."
The prosecutor is a private company which farms Atlantic salmon and other species in the company's three cage farms in North West Bay and D'Entrecasteaux Channel in Southern Tasmania. In 1997 the Kingborough Council gave public notice that proposed alterations to the Kingborough Planning Scheme 1988 and known as "Q" Series Amendments thereto had been certified as suitable for public exhibition by the Land Use Planning Review Panel (since renamed Commission) and might be inspected at the offices of the Council and of the Commission. Notice inviting the submissions of representations pursuant to the Land Use Planning and Approvals Act 1993 ("the Act"), ss38 and 39, by 28 November 1997 was given publicly.
The draft amendments notified were as follows:
"Changes to the Plan
Amendment Q1
Esplanade, Margate (Tasmap ref 7267)
From Road and Open Space Zone to Port and Marine Zone
Amendment Q2
Esplanade, Margate, and North West Bay
(Tasmap refs 2202, 2203, 2204, 7267)
Addition of thick line and annotation 'See Clause 3.16.5'
Change to the Ordinance
Amendment Q3
Inclusion of clause 3.16.5
'3.16.5
(a) Notwithstanding any other provision of this Scheme and subject to paragraph (b) hereof, in respect of land at Margate identified on the plan by reference to this clause, the use and/or development of the land for the following purposes shall be permitted provided that any development complies with the setback provisions of the Clause 8.7.2(a) and that the height of the buildings does not exceed 24 metres, regardless of whether or not such uses and/or developments comply with any other applicable development standards:(i) Commercial or recreational marina
(ii) Building, repair, maintenance, servicing and/or provisioning of ships and boats
(iii) Slipways
(iv) Boat ramp
(v) Wharf
(vi) Sales of boats and marine equipment
(vii) Fuel storage associated with any of the preceding purposes
(viii) Take away food shop and restaurant associated with any of the preceding purposes
(ix) Any use or development otherwise permitted or discretionary in the Port & Marine zone (excluding House and Ancillary Apartment).
(b) Any permit issued in respect of an application made under paragraph (a) hereof must contain conditions consistent with and relating to issues identified in the Environmental Management Plan for the site prepared by Hobart Ports Corporation and John Fuglsang Constructions (Aust) Pty Ltd and dated the 1st day of November 1997.'"
The prosecutor made a representation to the Kingborough Council in respect of the proposed amendments on 28 November 1997 and instructed counsel to appear before the Commission at a public hearing conducted pursuant to the Act, s40(2) on 8 and 9 January 1998. By a document erroneously dated 4 January 1998 but which was published by the Commission some time after the above hearing and prior to 16 February 1998, the Commission stated:
"CONCLUSION:
The draft amendments present relatively simple propositions; to extend the existing Port and Marine zoning to the waterfront, provide for an increased maximum building height, and identify the permitted use and development including structures contemplated seaward of high water mark. The amendments are not extraordinary and essentially enable appropriate effect to be given to the policy for the area established for many years. The EMP as an incorporated document will provide a basis for assessment of permits and conditions to ensure the specified performance is achieved.The draft amendments should be approved subject to modifications proposed by or in part suggested by the applicant, as follows:
1 Draft amendment Q2:
Reduce the area of application of Clause 3.16.5 to the area defined as the maximum impact area on Attachment 2 to the proof of evidence of Dr McCambridge.
2 Draft amendment Q3:
(a)Modify Clause 3.16.5(a) after the work permitted add the words 'subject to conditions'.
(b)Delete the words to Clause 3.16.5(a)(ix) and substitute carpark and add (x) showroom and (xi) light industry as permitted use and development.
(c)Modify Clause 3.16.5(b) [3.16.5(d)] to add 'and addenda required by the Commission of 4 February 1998.
(d)Modify subclause (a) to new subclause (b) to set the maximum height of buildings and percentage of the site for which buildings greater than 12m could be developed.
(e)insert sub clause (c) to limit the type of development seaward of high water mark.
(f)insert sub clause (e) to identify marine farming operators and the Department of Primary Industry and Sea Fisheries as a body for consultation.
3Attach the following proofs of evidence to the EMP as addenda to that document:
J McCambridge Margate Maritime Industrial Park, Environmental Impacts.
A MacNeil Submission for Aquatas Part 1 Main Submission
W Wood Submission for Aquatas Part 3 Environmental Management Plan Review.
Draft amendment Q1 does not require modification.
DECISION
The representations are upheld to the extent of the modifications shown as Attachment 1. In other respects the representations are dismissed. Draft amendment Q1 and draft amendments Q2, Q3 as modified shall be approved."
This is the decision referred to in the order nisi as the decision made on 4 February 1998 "by which final approval was given to amendments Q1, Q2, Q3, after making amendments to Q2 and Q3".
Attachment 1 set out first, in plan form, the reduced area of application of cl 3.15.5 contemplated by par1 above and second, in written form, a further draft of cl 3.16.5 incorporating the modifications contemplated by par2.
The first ground upon which that decision is sought to be quashed is:
"(A)The Commission acted ultra vires in giving final approval to the amendments Q2 and Q3 after altering those amendments".
The Act, in Div 2 comprising ss31 - 43, deals with amendments to planning schemes. Relevantly, a planning authority may initiate an amendment of a planning scheme administered by it in response to a request or of its own motion (s34). Any amendment must seek to further the objectives set out in the Act, Sch 1, must be prepared in accordance with State Policies made under the State Policies and Projects Act 1993, s11 and may make any provision which relates to the use, development, protection or conservation of any land (s32(1)). The planning authority must, within seven days of making a decision to initiate an amendment of a planning scheme, give notice to the Commission, and such other notice as may be prescribed, of its decision, indicating the manner in which it is proposed to amend the planning scheme (s35). Within ten weeks of making that decision, the planning authority must submit a copy of a draft amendment to the Commission (s36(1)). Within twenty-eight days of the submission of a draft amendment, the Commission must examine it and if it is suitable for exhibition, certify it accordingly and direct the planning authority to publicly exhibit it (s36(4)). For the purposes of that subsection, a draft amendment of a planning scheme is suitable for exhibition if it satisfies the requirements referred to in s32 or the Commission, by notice in writing given to the planning authority, directs that the draft amendment be publicly exhibited, together with a notice from the Commission, indicating that its approval of the draft amendment will be conditional on issues identified in the notice being dealt with to the satisfaction of the Commission (s36(5)).
Where the draft amendment is placed on public exhibition by the planning authority, representations in respect to it may be made by any person and the planning authority must forward to the Commission a copy of each representation with its comments as to the merits thereof and any recommendations (s39). The Commission must (subject to some exceptions not here relevant) hold a hearing and must consider this material (s40). The Commission may then require the planning authority to modify, or alter to a substantial degree, the draft amendment or may reject it (s41). If a draft amendment is required to be modified, or altered to a substantial degree, the Commission, by notice in writing to the planning authority, must:
(a) direct that it undertake the modification or alteration; and
(b) specify the manner in which the draft amendment is to be modified or altered (s41A(1)).
The planning authority must then undertake a modification, or an alteration to a substantial degree, to a draft amendment in accordance with a direction by the Commission within twenty-eight days of the receipt of that direction (s41A(2)). In the case of alterations to a substantial degree, the Commission must, within twenty-eight days of receipt of the altered draft, re-certify it and direct the planning authority to publicly exhibit it, with the consequence that further representations may be received and heard (s41B). Where, after consideration by the Commission under s40 of a draft amendment (including any modifications made under s41) the Commission is satisfied that the draft amendment is in order, it must give its approval to the draft amendment (s42(1)).
In the present case, the Commission did not require any modification to draft amendment Q1, but directed that draft amendments Q2 and Q3 did require certain modifications which I have set out above under the heading "Conclusion". Furthermore, it determined that the changes it set out under that heading were modifications and did not constitute alterations to a substantial degree. Ground (A) claims that the Commission failed to obey the mandatory requirements of s41A(1), viz to give notice in writing to the planning authority directing that it undertake the modifications and specifying the manner in which the draft amendment is to be modified, but proceeded to give its approval under s42 to the draft amendments, as modified by it, without requiring the planning authority to go through the process of undertaking these modifications and submitting the modified amendment to the Commission within twenty-eight days in accordance with s41A(2). In other words, it foreshortened the process, nominated modifications to be made to two of the draft amendments and purported to give its approval to them instanter.
In my opinion, this ground is misconceived. The decision which is the subject of this challenge by way of prerogative writ does not purport to grant approval under s42. It clearly indicates the nature of the modifications required by it. It was not required to condescend to formal drafting of the proposed amendment as thus modified. It would have been sufficient to have confined itself to expressing the modification in the way the first modification was expressed under the heading "Conclusion", viz "Reduce the area of application of Clause 3.16.5 to the area defined as the maximum impact area on Attachment 2 to the proof of evidence of Dr McCambridge". The Commission there indicated the kind of modification required, but had it gone no further, the amendment would have had to be redrafted so as (inter alia) to incorporate certain areas defined in the extraneous proof of evidence of Dr McCambridge. This is normally a task for the planning authority as envisaged by s41A(2). Upon that authority undertaking the modification in the sense of reducing it to an appropriate written formula and resubmitting it, the Commission, if satisfied that it is in order, is obliged to approve it under s42. The decision under challenge does not purport to do that. It expressly uses the future tense when it concludes "Draft amendment Q1 and draft amendments Q2, Q3 as modified shall be approved". The Commission did, in this case, condescend to formally draft the proposed amendment as modified and, no doubt, thereby not only saved the planning authority the trouble of doing so, but minimised the risk that the latter might not reduce it to a written formula which the Commission could be satisfied was in order. However, by doing what it did, the Commission did not relieve the planning authority of its obligation under s41A(1) to undertake the modifications required by it. There is no evidence before me negativing the proposition that the planning authority was notified in writing of the Commission's decision under s41A(1) and resubmitted amendments which incorporated the necessary modifications, that process leading to approval being given by the Commission under s42 in some other document. Even if there had been a failure to adopt that procedure, the challenged document itself is not lacking in efficacy as recording the decision of the Commission pursuant to s41 to require the modification of the amendment, nor is the challenged decision ultra vires.
Grounds (B) and (C) can be considered together. They are:
"(B)That the Commission acted ultra vires and exceeded its jurisdiction in that the changes to amendments Q2 and Q3 constituted modification or alteration to a substantial degree within the meaning of section 41(a) and 41(A) of the Land Use Planning and Approvals Act (1993) yet the Commission failed to follow the procedure prescribed by section 41A.
(C)The Commission failed to properly exercise and misunderstood its jurisdiction in that in determining that the changes to amendments Q2, Q3 were modifications and not alterations to a substantial degree within the meaning of sections 41(a) and 41A of the Land Use Planning and Approvals Act (1993) it made its determination for the following reasons:
(i) the changes limit rather than expand;
(ii) the changes are in response to issues raised in representations;
(iii) the changes have the support of the Council.
The above reasons being relevant in determining whether a change constitutes modification or alteration to a substantial degree. Further the application of the above reasons was an incorrect basis for determining whether a change constitutes modification or alteration to a substantial degree."
Section 41B requires that if a draft amendment has been altered to a substantial degree rather than merely modified, it must be re-certified and re-exhibited with consequential rights to make representations. The prosecutor first argues that the changes to the amendments were not modifications, but were alterations to a substantial degree. It is not disputed that it is for the Commission to decide into what category the changes to Q2 and Q3 fell. Such decisions involve matters of degree and unless the categorisation is patently erroneous or it is shown that in forming that judgment the Commission placed reliance upon wholly irrelevant considerations, it is not for this Court to substitute its own view should that be at variance with that of the Commission.
In Bernard Rothschild Pty Ltd v City of Melbourne (1982) 52 LGRA 442, Anderson J had to deal with a planning authority's power to grant a permit to use land for certain purposes in accordance with certain standards, subject to such modifications as the authority might permit. A planning tribunal, reviewing the authority's decision, confirmed that the departure from the prescribed standards permitted by that authority was a modification. At 446 - 447, after referring to the composition of the tribunal, Anderson J said:
"Of course, a recognition of the specialist qualifications of members of the tribunal in relation to town planning principles does not place their deliberations or conclusions beyond review by this Court, but it does involve an acknowledgment that where there is a discretion, as there is here, to allow a departure from a prescribed standard, the tribunal may employ its expertise within reasonable limits to determine whether the departure is a modification. In Legg v Inner London Education Authority [1972] 1 WLR 1245 at 1255, 1256, Megarry J, in what he described as 'otherwise barren territory', has helpfully said:
'The process involved in "modification" is thus one of alteration, and it must be considered how radical that alteration is. The alteration may consist of additions or subtractions or other changes in what is already there, or, no doubt, any combination of these. But throughout, there must, I think, be the continued existence of what in substance is the original entity. Once one reaches a stage of wholesale rejection and replacement, the process must cease to be one of modification.'
On the question of whether to grant a permit with modifications, or to grant what is a different permit, Brooking J said in Addicoat v Fox (No 2) [1979] VR 347 at 353; (1978) 37 LGRA 411:
'This is plainly a matter of degree, and indeed it is almost one of impression. In my view, the changes made may be considerable without bringing it about that the permit granted is a different as opposed to a modified permit.'
That case illustrated that this Court may quash a determination of a tribunal where the alteration is too great; but it is reasonable to say that, where it is a matter of degree, the tribunal is well placed to determine the limit beyond which the alteration should not fairly go. Each case, of course, depends on its own facts, and reference to other cases merely reveal the laments of others because of the problems presented and illustrates how in the particular case the problem was resolved."
In my view, the same considerations apply here. In each case, a decision had to be made whether the alteration in question was a modification or something quite different. This Court should recognise that the Commission is well placed to determine the limit beyond which the alteration should not fairly go without being classified as one to a substantial degree requiring further re-certification, advertisement and hearings to determine and adjudicate upon any further representations. That is not to say, of course, that the words used in the statute can mean what the Commission wants them to mean.
The word "substantial" in the phrase "causing substantial loss or damage to the business of the Corporation" was considered by the Full Court of the Federal Court in the context of the Trade Practices Act 1974 (Cth) in Tillmanns Butcheries Pty Ltd v A M I E U (1979) 27 ALR 367. At 382 Deane J said:
"The word 'substantial' is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase 'substantial loss or damage', it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ([1948] 1 All ER 1 at 11; [1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to 'considerable, solid or big', he said: 'Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case ...'."
In the same context, the phrase "substantially lessening competition" was considered by Lockhart J in Radio 2UE Sydney Pty Ltd v Stereo FM Pty Ltd (1982) 44 ALR 557. At 563 his Honour said:
"The word 'substantial' appears in various contexts in the Act itself. It has been considered by judges of this court as meaning real or of substance: see Cool & Sons Pty Ltd v O'Brien Glass Industries Ltd, a judgment of Keely J, (1981) 35 ALR 445 at 458; Hecar Investments No 6 Pty Ltd v Outboard Marine Australia Pty Ltd, a judgment of Franki J [1982] ATPR 40-298 at 43,699. In Dandy Power Equipment Pty Ltd v Mercury Marine Pty Ltd (1982) 44 ALR 173, Smithers J said that the word 'substantially' in the context of the phrase 'substantially lessening competition' (sub-ss (10) and (13) of s 47) was used 'in a sense importing a greater rather than a less degree of lessening'."
Reference to Butterworth's Australian Legal Words and Phrases at 636 ff reveals a variety of contexts in which the words "substance" and "substantial" have been used and interpreted. In some cases it is used in a quantitative sense; in others it is qualitative in the sense of relating to or proceeding from the essence of a thing. I do not consider that it is used in a quantitative sense in the present context, but rather in a qualitative. Changes to the amendment may be numerous yet remain only modifications of the amendment, while a single change may so radically alter the substance of the proposed amendment as to amount to a different proposal. The changes postulated here were not such as to constitute different proposals. One change was a reduction in the number of uses to be permitted as of right. Originally twelve nominated uses had been classified as discretionary. The amendment proposed that they all be made permitted uses. An additional eight uses, previously not nominated but arguably included in the description "miscellaneous" which was discretionary, were proposed for inclusion in the table of permitted uses. The Commission directed that the amendment be changed so as to reduce the number of uses to be changed to permitted from twenty to eleven. In so much as the substance of that part of the proposed amendment was a re-classification of the uses which might be permitted rather than discretionary, a reduction in the number so reclassified did not, in my opinion, involve any substantial alteration or, to use the words of the statute, "alteration to a substantial degree". The Commission, with its expertise, was well placed to identify the essence of the amendment and its effect upon town planning and to determine whether or not the change it required was merely a modification of the proposal or was an alteration of it to a substantial degree. The same can be said of the other changes which dealt with such matters as a maximum building height and a requirement that, in addition, certain development be consistent not only with the environmental management plan as originally proposed, but also with reports from experts called by both the prosecutor and John Fuglsang Constructions (Australia) Pty Ltd which is seeking, pursuant to the amended scheme, to undertake developments which the prosecutor fears may affect its operations. None of the changes which the Commission determined were modifications in any way adversely affect the prosecutor, its counsel concedes. In my opinion, it has not been shown that the Commission patently erred in classifying the changes as modifications.
The second argument is that the Commission relied on irrelevant matters in reaching that determination. It is said that the fact that the changes limited or cut down the proposed amendments, were made in response to issues raised in representations and had the support of the Council, formed the basis of the Commission's determination. For the reasons I have already given, I do not regard the fact that there was a reduction in the number of permitted uses from those originally proposed by the amendment as irrelevant to a consideration of whether this constituted an alteration to a substantial degree, having regard to the nature of the amendment. The fact that the changes were supported by the Council and accorded with the wishes of those making representations is not of itself a criterion for determining whether the change was a modification or a substantial alteration, but I do not read the Commission's decision as confining its reasons for that determination to that fact or necessarily placing any particular reliance upon it therefor.
In Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259, Brennan CJ, Toohey, McHugh and Gummow JJ warned against too legalistic a scrutiny of the wording used by a decision-maker and approved the concept of its beneficial construction. At 271 - 272 they said:
"When the Full Court referred to 'beneficial construction', it sought to adopt an approach mandated by a long series of cases, the best exemplar of which is Collector of Customs v Pozzolanic ((1993) 43 FCR 280). In that case, a Full Court of the Federal Court (Neaves, French and Cooper JJ) collected authorities for various propositions as to the practical restraints on judicial review. It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker (Pozzolanic (1993) 43 FCR 280 at 287). The Court continued (at 287): 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error'.
These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed (See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616)."
What the Commission said was:
"Counsel for Aquatas contended the proposed changes could not be treated as modifications but amendments that should be subject to further exhibition and approval processes. This submission is not accepted, the changes limit rather than expand and are in response to issues raised in representations, and have the support of Council. The proposed changes are modifications and do not constitute an alteration to a substantial degree."
It is not the case that the Commission postulated some erroneous test. It was, as I have already said, well placed to distil the essence of the amendment and of the changes to it and to assess whether the latter constituted an alteration to a substantial degree. If anything, the comments relevant to the support the changes had were superfluous. Their inclusion does not indicate that the Commission misdirected itself, let alone reached an erroneous conclusion. Grounds (B) and (C) are not made out.
Grounds (D), (E), (F) and (G) were argued together. They are as follows:
"(D)The Commission made a jurisdictional error in that it failed to take into account and apply the mandatory provisions of clause 3.3 of the State Coastal Policy (1996) when it was required to do so.
(E)The Commission made a jurisdictional error in that it failed to consider and take into account and apply 'the precautionary principle' which must be applied pursuant to clause 2.1.5 of the State Coastal Policy (1996) when it was required to do so.
(F)The Panel made a jurisdictional error in that it failed to consider and take into account clause 42.2 of the State Policy on Water Quality Management (1997) when it was required to do so.
(G)The Commission erred in law in holding 'threats to fish farming because of possible poor water quality outcomes are not a basis for rejecting the draft amendments' when this was contrary to the 'precautionary principle' in the State Coastal Policy (1996) and contrary to clause 42.2 of the State Policy on Water Policy Management (1997)."
The Act, s32(1) requires any amendment to a planning scheme to be prepared in accordance with State Policies made under the State Policies and Projects Act 1993, s11. That Act, by s13, in any event, provides that where there is inconsistency between a provision of a State Policy and a provision of a planning scheme, the latter provision is void to the extent of the inconsistency. The prosecutor contends that the Commission failed to consider and take into account some of the provisions of two such policies, namely the State Coastal Policy 1996 and the State Policy on Water Quality Management 1997. As to the first Policy, there is a provision under the heading "3.3 PUBLIC PARTICIPATION AND INFORMATION" to the following effect:
"3.3.4Communities will be given the opportunity to make submissions to all plans or policies affecting the coastal zone. Consultative meetings with relevant and interested community groups and individuals in local or regional areas will be held in conjunction with the release of policies and plans wherever possible."
It is common ground that these amendments affect the coastal zone. The argument is that insofar as the amendments create permitted uses, the community will not be given the opportunity to make submissions in respect of developments in accordance with any such permitted uses. In my view, the fact that the community has had the opportunity to make representations in respect of the amendments under the Act, s39 is sufficient compliance with cl 3.3.4 of the State Coastal Policy. The amendments are clearly plans or policies affecting the coastal zone. Among other things, they change eleven uses from the status of being discretionary to that of being permitted. If allowing certain uses to be permitted uses involves an infringement of the State Coastal Policy because the community will not be given the opportunity to make submissions about any particular development, the net effect would be to prevent any planning scheme affecting a coastal zone from having anything other than discretionary or prohibited uses. I do not consider that this could be the case. The community had its opportunity to make submissions and the making of the amendments does not infringe cl 3.3.4 of the Policy.
Alternatively, it was submitted that the Commission did not give proper consideration to the question whether or not the amendments were inconsistent with cl 3.3.4. The Commission, in its published decision, said this:
"The Act has as an objective, 'to encourage public involvement in resource management and planning'. In Part 2 of Schedule 1 of the Act the supporting objective is:
'(b) to establish a system of planning instruments to be the principal way of setting objectives, policies and controls for the use, development and protection of land.'
The Act requires formal public processes on planning schemes and amendments including the hearing and determination of representations. The Act also defines two types of permits, stated generally as permitted and discretionary. Tasmanian planning schemes have always contained the concept of permitted use allowing certainty for defined activities. Since 1993 the concept of permitted use or development has been recognised in legislation. For certain permits the process of the approval of planning schemes and their amendment must therefore satisfy Objective (b) Part 2 Schedule 1 of the Act.
Representators drew attention to Clause 3.3 of the State Coastal Policy 1996 concerning public participation and information. Clause 3.3 sets principles for public participation, yet other clauses in the Coastal Policy make provision for implementation of the policy through land use planning controls and resolution of competing demands by the Commission."
This passage demonstrates that the State Coastal Policy was not overlooked by the Commission. It is submitted, however, that inadequate consideration was given to its provisions. In Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455, Wilcox J observed at 472:
"I agree that these claims each raised a relevant matter. They were not overlooked by the delegate. In each case they were referred to in the delegate's decision. It is another matter whether they were adequately addressed: see Hindi v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586 at 597-8 and the cases there mentioned. Sheppard J there adopted a statement by Gummow J in Khan v Minister for Immigration and Ethnic Affairs (Federal Court, 11 December 1987, unreported):
The assertion by a decision-maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense: …"
In my view, it cannot be said that the Commission gave inadequate consideration to the argument raised. From the passage above quoted, it is clear that the Commission was conscious of and took into account other clauses in the policy, such as that contained in the preamble at page 12 of the policy under the heading "Integrated management and protection of the coastal zone is a shared responsibility":
"This principle recognises:
…·that planning authorities have a key role in sustainable development of the coastal zone under the Land Use Planning and Approvals Act 1993 through planning schemes and decisions which are guided by the State Coastal Policy."
And:
"2.1.4 Competing demands for use and development in the coastal zone will be resolved by relevant statutory bodies and processes, in particular the Land Use Planning Review Panel, the Resource Management and Planning Appeal Tribunal and the Marine Farming Planning Review Panel. Planning schemes, marine farming development plans and other statutory plans will provide guidance for resource allocation and development in accordance with this Policy."
It is not a valid criticism to say that the Commission failed to specifically state that it considered the objection processes under the Act sufficient compliance with policy clause 3.3.4. The principle of beneficial construction adverted to in Minister for Immigration v Wu (supra) is equally applicable in this context. Ground (D) is without merit.
Another clause of the State Coastal Policy said not to have been considered and taken into account is the "precautionary principle" set out in cl 2.1.5 (ground (E)). This principle is defined in the preamble to the policy as follows:
"Precautionary principle
(Intergovernmental Agreement on the Environment, 1992)
'precautionary principle' means where there are threats of serious or irreversible environmental damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.
In the application of the precautionary principle, public and private decisions should be guided by:
(i)careful evaluation to avoid, wherever practicable, serious or irreversible damage to the environment; and
(ii) an assessment of the risk weighted consequences of various options."
Clause 2.1.5 states:
"The precautionary principle will be applied to development which may pose serious or irreversible environmental damage to ensure that environmental degradation can be avoided, remedied or mitigated. Development proposals shall include strategies to avoid or mitigate potential adverse environmental effects."
A similar concept is contained in the State Policy on Water Quality Management 1997, Cl 42.2 (ground (F)), which states:
"Areas designated for marine farming should be protected from adverse changes in water quality arising from adjacent land based activities or activities in the adjacent coastal area."
Ground (G) claims that the Commission erred in law in holding that threats to fish farming because of possible poor water quality outcomes, are not a basis for rejecting the draft amendments because such a holding was contrary to the above provisions and principles.
The Commission found that "lack of information on hydrology currents, etc prevent the effect on fish farms of pollutants emanating from the site being assessed at this time". In these circumstances, it was unable to make a finding whether (and if so, to what extent) any given development might pose serious or irreversible environmental damage, even though the prosecutor had some apprehensions of such a possibility. The amendments, however, included one empowering the planning authority to impose conditions when granting any permit for a development which was a permitted use. The precautionary principle prohibits the postponement of measures to prevent environmental degradation merely because there is no scientific certainty as to the likelihood of serious or irreversible damage being caused by a development. In the application of the principle, decisions must be guided by a proper process of evaluation to avoid damage and of assessment of the consequences of possible choices. Clause 2.1.5 applies the principle to development in general and requires development proposals to include strategies to avoid or mitigate adverse effects on the environment. The Commission's decision to approve the amendments as modified did not conflict with this principle, or with the last-mentioned clause. Indeed, the modification allowing for the imposition of conditions where a permit was granted was one way of ensuring that any future development proposal in respect of a permitted use would not be undertaken without the appropriate strategies being put in place to avoid degradation. In the same way, the power to impose conditions ensures that marine farming areas can be protected in accordance with the State Policy on Water Quality Management. The Commission acknowledged the prosecutor's case for protection from adverse impact, but had insufficient material at the time of its decision to determine with precision what protective measures would be required, leaving it to the planning authority to ensure appropriate conditions were laid down. It did not err in law in holding that the existence of threats to fish farming by reason of poor water quality was not a basis for rejecting the draft amendments. These grounds are not made out, in my view.
It is convenient to consider ground (I) next. It reads:
"The Commission erred in law in holding that the Kingborough Council would need to be satisfied in respect of the effect of pollutants on fish farms prior to granting a permit when, pursuant to the amendments approved by the Commission, the Council was obliged to grant a permit to the developer."
While the Kingborough Council will be obliged to grant a permit for a development which is a permitted use and does not retain a discretion to refuse it, such a permit will be subject to such conditions as may be necessary to comply with any State policy, including, in particular, that concerned with water quality. To ensure that it is fully apprised of the kind of conditions it needs to impose, it needs to assess (inter alia) the effect of pollutants on fish farms. The prosecutor argues that as the permit must be issued within sixty days after an application is made (the Act, s58), the practicalities are that there is insufficient time to procure the necessary information for appropriate conditions to be formulated. In my view, this is purely speculative. I have no means of knowing what time would be required for an evaluation to be made and I am unable to conclude that the Council will or may be forced to issue a permit before it has had time to determine the conditions which will ensure the State policies are adhered to. Balmain Association Incorporated v Planning Administrator for the Leichhardt Council (1991) 25 NSWLR 615 was relied upon, but I find it of little assistance in the present circumstances. In that case, the Minister purported to require the Council to undertake certain statutory obligations within a time frame which the court, on a consideration of the statutory scheme, was able to assess objectively as quite unreasonable. The consequence was that the Minister's action in appointing an administrator when the Council failed to comply within the time set by him was declared to be invalid due to his failure to afford the Council procedural fairness. The case is quite distinguishable.
The final ground is ground (H), which reads:
"The Commission erred in law in that when considering whether a permit for a 'port' could be granted it took into account an irrelevant consideration viz 'On the evidence a port is not proposed for the subject land' when the rezoning proposed in the certified amendments will run with the land and is not personal to the developer; John Fuglsang Constructions (Aust) Pty Ltd."
The Commission was not required to determine whether or not a permit for a port could be granted under the scheme. Amendment Q1, which is not the subject of challenge, authorised the extension of Port and Marine zoning over land previously zoned Road Reserve and Open Space. Q3, which is the subject of challenge, authorised the following purposes as permitted, subject to conditions:
"(i)Commercial or recreational marina
(ii)Building, repair, maintenance, servicing and/or provisioning of ships and boats
(iii)Slipway
(iv)Boat ramp
(v)Wharf
(vi)Sales of boats and marine equipment
(vii)Fuel storage associated with any of the preceding purposes
(viii)Take away food shop and restaurant associated with any of the preceding purposes
(ix)Carpark
(x)Showroom
(xi)Light Industry"
This was achieved by a modified cl 3.16.5(a). Modified cl 3.16.5(c) provided:
"The Council shall not grant a permit for a development below high water mark as it exists from time to time unless it is a marina, a wharf, a slipway, a boat ramp, or it is a structure relating to these uses or to a use for which a permit is granted above the high water mark."
The Commission recorded the submissions concerning the creation of a port, as follows:
"Port
Representations and submissions to the hearing made reference to the creation of a port on the subject site. The scheme does not elaborate on the definition of port, if a port is a place as in harbour, where ships or persons stop during a journey, where there is a transfer of goods between vessels and shore then on the evidence a port is not proposed on the subject site. The intent of the Port and Marine zone includes:to provide areas for port and marine activities; and
for uses such as cargo handling.
Despite the intent it is not clear that the use 'port' could be granted a permit. On the evidence a port is not proposed for the subject land."
The prosecutor claims that the Commission took into account an irrelevant consideration, namely that in fact a port in the sense of a place where there is a transfer of goods between vessels and shore was not proposed by the developer. It is true that the amendment attaches to the land; but the Commission did not reject the prosecutor's representations simply because the developer did not propose cargo handling activities which, if permitted, might constitute use of the land as a port. It pointed out that the departures authorised by the amendments permitted only the eleven uses specified in cl 3.16.5(a) and restricted development below high water mark in the way set out in cl 3.16.5(c). The Commission did not determine whether or not the use of the land as a port might be permitted under the scheme. Clearly, the amendments did nothing to render it more probable that a permit for a port might be granted, or that a port might be developed, than exists under the scheme unamended. The intention of the developer was an irrelevancy upon which no reliance was placed by the Commission.
In my opinion, none of the grounds has been made out and the order nisi should be discharged.
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