Sandy Bay Developments v Loring - [1991] TASSC 34

Serial No 1/1991
List "A"

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Sandy Bay Developments v Loring [1991] TASSC 34; A1/1991

PARTIES:  SANDY BAY DEVELOPMENTS PTY LTD
  v
  LORING, ROBERT
  LORING, MARGARET

FILE NO/S:  FCA 88/1990
DELIVERED ON:  18 January 1991
JUDGMENT OF:  Green CJ, Wright & Crawford JJ

Judgment Number: A1/1991
Number of paragraphs: 96

FULL COURT:

GREEN CJ

WRIGHT J
CRAWFORD J
18 January 1991

ORDERS OF THE COURT:

Appeal allowed.
Orders dated 6 September 1990 directing the issue of writs of certiorari and mandamus set aside.
General Order to show cause dated 19 July 1990 discharged.

Serial No 1/1991

List "A"
File No FCA 88/1990

SANDY BAY DEVELOPMENTS PTY LTD v

ROBERT LORING & MARGARET LORING

REASONS FOR JUDGMENT FULL COURT:

GREEN CJ
18 January 1991

This is an appeal against an order directing the issue of writs of certiorari and mandamus directed to the Planning Appeal Board constituted by the Local Government Act 1962. The relevant facts and statutory provisions and the history of the proceedings appear in the reasons for judgment of the other members of the court and I do not need to repeat them.

Whether or not the answers given by the Board to the questions put to it by the parties at the preliminary hearing were correct does not of itself determine the issue of whether the Board fell into error. This court is only concerned with what the Board actually did although those answers may help to explain or characterise what it did.

The learned trial judge summarised three of the conclusions which he reached as grounds for the issue of the writs 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."

With respect I do not regard those conclusions as sufficient to justify the issue of the writs. The Board was alert to the requirements of reg9A(1) and to the existence of the discretion under reg9A(2) and proceeded to hear the appeal on its merits. The respondents carried the burden of demonstrating that the Board failed to exercise its discretion under reg9A(2). In the circumstances of this case I do not think that the mere fact that the Board did not expressly make the findings or give the direction referred to in reg9A(2) demonstrates that it in fact failed to exercise its discretion under that sub–regulation. But even if the Board did fail properly to exercise its discretion under reg9A(2) I am of the opinion that that would not have justified the issue of the writs. The respondents have not shown that the Board‘s determination was illegal on its face. The respondents sought a determination of their appeal to the Board on its merits. Any defects in the proceedings were minor procedural defects only which did not result in any injustice or unfairness or impair the Board’s capacity properly to determine the appeal on its merits. As to the relevance of the foregoing considerations see Permanent Trustee Co of NSW Ltd v Campbell Town Corporation (1960) 105 CLR 401 in which Menzies J said at p413:

" ... I should say that I fail to understand how a party who institutes proceedings can, when the case goes against him, successfully proceed either by way of prohibition or certiorari to have his own proceedings prohibited or quashed on the ground that his proceedings were beyond the jurisdiction of the tribunal whose decision he invoked."

See also R v Lilydale Magistrates Court [1973] VR 122.

The learned trial judge also held that the Board‘s determination that the appeal was restricted to the issues raised by the notice of appeal was wrong and proceeded upon an erroneous understanding of the nature of the appeal. Whether or not the Board's determination was wrong cannot be decided by any attempt to fit the Board‘s function into some fixed category of appellate or litigious proceeding. The word "appeal" has no fixed meaning it being "a term loosely employed to denote a number of different litigious processes which have few unifying characteristics". Per Glass JA in Turnbull v N.S.W. Medical Board [1976] 2 NSWLR 281 at p297. Even the apparently more precise description of a tribunal’s function as an appeal by way of rehearing was characterised by Mason J in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 as a "Delphic utterance" which doesn‘t greatly illuminate the question of what is the nature and scope of the tribunal’s function. In the end the nature and scope of the functions of a tribunal which is charged with the authority to hear an "appeal" must depend upon the court‘s determination of the intention of the legislature in each particular case. See Clarke & Walker Pty Ltd v Secretary Department of Industrial Relations and Another [1985] 3 NSWLR 685; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 (supra).

The parties properly accept that the Board exercised an original jurisdiction and had an obligation to determine the appeal de novo. But that characterisation of the Board’s function doesn‘t conclude the question of what is the scope of the matter or matters which the Board had an obligation to determine. The following provisions of the Local Government Act 1962 provide an indication of the legislative intent as to that issue:

1The provision in s733C(3) that the Board may reverse or vary any part of the decision of the corporation "whether the appeal relates to that part thereof or not" plainly contemplates that an appeal may be confined to some part only of the decision appealed from.
2The provisions of s733D(3) requiring the Chairman "to examine the notice of appeal" and to hold a preliminary conference "if the nature of the appeal" and the representations made in relation to "the subject matter of the appeal" appear to him to justify such a course are inconsistent with the suggestion that a notice of appeal is merely a trigger which has the effect of automatically requiring the Board to embark upon a consideration of the entire application for approval.
3The reference in s733D(3)(a) to the duty of the Board to ascertain "the substance of the appeal" suggests that each appeal is unique. If the Board’s only function were to determine the entire application for approval afresh the "substance" of every appeal would be the same in every case.
4The provisions of s.733D(3)(b)(ii) expressly recognise that the Board‘s function may be confined to the determination of issues which are more limited in scope than the issues which would be raised if the Board were required to embark upon a consideration of every aspect of the application for approval.

I conclude from the foregoing provisions that prima facie the Board’s only function is to determine those issues which are raised by the notice of appeal. However in an appropriate case the Board may have an obligation to consider matters or issues other than those raised in the notice of appeal if it is necessary for it to do so in order to enable it properly to discharge the duty imposed upon it by s733C(3) to form an opinion as to what "should have been the decision of the corporation on the application to which the appeal relates". Those additional matters may be raised by the parties or the Board itself. Whether the Board will feel itself bound to enlarge the scope of the hearing beyond that indicated by the notice of appeal will depend upon the exercise of a discretionary judgment as to what issues it needs to consider before it can properly form that opinion. In my view the following observations made by Walsh JA in Bopark Building (No 8) Pty Ltd v Minister for Lands (1968) 70 SR (NSW) 336 at 348 - 350 about the powers and function of the Land and Valuation Court of New South Wales are apposite to this case.

"The question is not really a question as to what are the powers of the court in dealing with the question or questions raised by an appeal which is before it. We are concerned with deciding what were the questions with which the Land and Valuation Court ought to have dealt, rather than with the scope and extent of its powers in dealing with them."
......
"The proposition that the Land and Valuation Court must always carry out a statutory duty to determine the value of the land once it has the matter before it, regardless of what has been put forward to the court by the parties, cannot be accepted."
......
" ... once it is accepted that what the court is required to do is not governed by a statutory mandate operating automatically in all circumstances, but is governed by the issues or contentions which the parties have placed before it for decision, the consequence is, in my opinion, that the court is concerned with the issues or contentions which have been raised for its consideration and have been raised by the proper procedure prescribed in that behalf."

I am of the opinion that the Board did not fall into error in restricting the appeal to the issues raised by the notice of appeal. I am also not satisfied that the respondents have demonstrated that the Board‘s decision not to entertain any additional grounds involved any error, injustice or procedural unfairness such as would be sufficient to justify the court in granting a writ of certiorari or a writ of mandamus.

One of the grounds of the order nisi was to the effect that the Board fell into error by not deciding an issue which had been raised before it on the hearing that the approval granted by the Corporation was invalid by virtue of the provisions of the Battery Point Planning Scheme. The trial judge considered that it was not necessary or appropriate for him to determine this ground. This ground of the order nisi was not one of the grounds upon which the orders which are the subject of this appeal were made and thus it is not necessary for this court to deal with it in order to dispose of this appeal. I am not persuaded that it has been shown that this is a case in which this court should exercise what is virtually an original jurisdiction and consider for itself whether either of the writs sought should have been granted on this ground. However even if I am wrong in that opinion, for the reasons given by Wright J. I would not in any event regard as appropriate that either of the writs sought should issue on this ground.

In my opinion the appeal should be allowed, the orders dated 6 September 1990 directing the issue of writs of certiorari and mandamas should be set aside and the orders nisi dated the 18 July 1990 should be discharged.
Serial No. 1/1991

List "A"
File No FCA 88/1990

SANDY BAY DEVELOPMENTS PTY LTD v

ROBERT LORING and MARGARET LORING

REASONS FOR JUDGMENT FULL COURT:

WRIGHT J
18 January 1991

On 6 September 1990, upon the return of a general order to show cause, Zeeman J ordered that a writ of certiorari issue to the Planning Appeal Board to bring up and quash for illegality, its determination made on 6 June 1990 in respect of an appeal by the present respondents against development proposals made by the present appellants. Zeeman J also ordered that a writ of mandamus issue directing the Planning Appeal Board to hear the appeal according to law.

In his reasons for judgment the learned trial judge discussed the nature and scope of an appeal to the Planning Appeal Board and concluded (inter alia):

1That the present respondents had a right of appeal to the Board and that a letter written by them to the Town and Country Planning Commissioner on 13 March 1990 purported to be a notice of appeal.
2That such document did not in fact comply with the provisions of reg9A(1) of the Local Government Regulations 1978.

His Honour observed that upon being invited to consider whether or not the appeal had been validly instituted and whether or not it should have dispensed with compliance with reg9A(1) pursuant to the enabling power contained in reg9A(2), the Planning Appeal Board fell into error in a number of ways.

His Honour, correctly in my opinion, observed that reg9A(2) required the Board to proceed as follows:

"(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."

His Honour also observed:
"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. ... 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."

Counsel for the present appellants contends that the provisions of reg9A are not complied with by an intending appellant against Council approval who merely refers to one or more of many intended grounds of appeal and, in effect, reserves a position for the addition of further grounds at a later stage. It was submitted that such a notice is not even a purported compliance with reg9A(1) and consequently, the Planning Appeal Board could only conclude, and should have concluded, that the appeal was not validly instituted and could not be saved by the exercise of the Board’s powers under reg9A(2). In my opinion this argument is simply not sustainable and the learned trial judge was correct in what he said in the passage from his reasons which I have reproduced above.

Although the Planning Appeal Board did not proceed in the methodical way prescribed by reg9A, it in fact dealt with the matter before it as though it had determined that the present respondents' failure to comply with reg9A(1) was not material to a proper consideration of the subject matter of the appeal. In other words, it considered an application by the respondents to enlarge their grounds of appeal and, then, having rejected that application, the Board proceeded to hear and determine the appeal on the two grounds which were referred to in the respondents' letter of 13 March 1990 in the following terms:

"... 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."

As a consequence of adopting this approach, the Board embarked upon a limited rehearing of the developer‘s proposal, taking evidence from witnesses called by both parties, but in the end, rejecting the present respondents' objections to the proposed traffic control system and the potential noise problem from the proposed service bay area. The Board also added a further condition to the granting of approval to the development scheme, but in substance endorsed the scheme as approved by the Council.

As the present appellants do not complain of, or object to the additional condition placed upon approval by the Board of its own motion, they submit that if their primary submission that the Board should have rejected the appeal under reg9A(2) is wrong, the determination actually made by the Board should stand and should not be remitted for redetermination as ordered by Zeeman J. Their concern stems not so much from the formal orders made by his Honour, but rather from the observations which he made as to the way in which the Board should re–embark upon a hearing of the appeal on its merits if it resolved the matters arising under reg9A in favour of the present respondents. In a sense it could be said that his Honour‘s observations on these matters were obiter dicta and formed not part of his judgment (see The Queen v Ireland (1970) 126 CLR 321 at 330 per Barwick CJ; Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64 per Barwick CJ and Kitto J and Ah Toy v Registrar of Companies for the Northern Territory (1985) 61 ALR 583 at 588–589 per Toohey, Morling and Wilcox JJ) but, in a practical sense as he has directed the Board to rehear the appeal "according to law", it may be assumed that the Board will comply with his exposition of the law, particularly as the learned trial judge observed in his reasons that if the Board were to exercise its discretion in favour of the present respondents, it should then undertake "a hearing of the appeal on the merits in accordance with these reasons". [My emphasis].

The present appellants are understandably concerned that if the Board should act in accordance with his Honour’s views, it would necessarily undertake a complete rehearing de novo of the development application made to the Council, unrestricted by the grounds of appeal relied upon by the present respondent. As the learned trial judge said:

"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".

After likening such an appeal to a quarter sessions appeal (which he could, in turn, have likened to a s152 appeal under the Justices Procedure Act 1919) the learned trial judge continued:
"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."

Having regard to the way in which this matter has developed, it appears to me to be almost inevitable that this Court will have to deal with this issue at some time before the present litigation is finally resolved and therefore, also bearing in mind the general public utility of having an authoritative statement upon the nature and scope of an appeal under s733D of the Local Government Act 1962, I think it highly desirable that we should deal with the problem at this stage of proceedings.

Furthermore, it seems to me that if his Honour was wrong as to the manner in which the Appeal Board should rehear this appeal, it may have a material bearing upon the way in which his discretion should have been exercised in deciding whether or not to grant the relief sought.

In these circumstances it seems to me that there is good reason for this Court to consider for itself the views expressed by the learned trial judge and to state its own conclusions as to the ambit of an appeal under s733D. (See Australian Telecommunications Commission v Colpitts (1986) 67 ALR 301, per Toohey J at 308).

The first point to observe is that the legislative framework for comparable schemes throughout the Commonwealth varies markedly from State to State and consequently little assistance is to be derived from judicial pronouncements as to the nature and scope of planning appeals in other jurisdictions.

Secondly we are dealing with an appeal from an administrative body to one which is required to act judicially and in this respect at least, it is easy to see a distinction between such a process and a so called quarter sessions appeal. However, as Mason J (as he then was) observed in Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, after discussing the significance of this consideration:

"... 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."

An additional point of distinction between a quarter sessions appeal and a planning appeal is to be seen in the quasi–criminal nature of the former, whereas on any view, a planning appeal must be characterized as a civil proceeding.

Mr Cranswick QC, senior counsel for the appellants argued that the present legislative scheme in this State differs significantly from the scheme as it existed at the time that R. v Town and Country Planning Commissioner: ex parte Scott [1970] Tas SR 154 was decided by Burbury CJ This argument is plainly correct.

The present legislative scheme is also materially different from that which was introduced by the Local Government (Planning Appeals) Act No 63 of 1975.

By the 1975 Act it was provided in s733D(3):

"A notice of appeal under this section shall identify the decision in respect of which the appeal is instituted and specify the person instituting the appeal, and shall set forth briefly the grounds of the appeal, and shall be accompanied by a fee of five dollars." [My emphasis].

However, as a consequence of amendments effected by No 91 of 1985, this provision has been removed and s733D(1) now provides, quite simply that:
"A planning appeal shall be instituted by lodging a notice of appeal, as prescribed, with the clerk to the Commissioner." [My emphasis].

Accordingly, since 1985 the otherwise persuasive argument that the legislation envisaged that an appellant to the Appeal Board must provide (and adhere to) grounds for his appeal, has lost most, if not all, of its force. Simply because the regulations now prescribe that an appellant must give grounds cannot aid in the interpretation of the Act under which those regulations were made. See In re K R Wood & Co [1962] Tas.SR 227, where Gibson J said at 234:
"Rule 4 of O.LXA purports to constitute the appeal as one by way of rehearing, but the answer to the question, what is the nature of the appeal, depends upon the statute, and not upon the rules made under it, which may only prescribe the conditions to which the right of appeal is subject."

It is, I think, instructive and useful to consider the details of the scheme provided for in ss733C and 733D. Section 733C provides as follows:
"733C–(1)       Where the corporation refuses to grant a planning approval or grants a planning approval subject to conditions or restrictions, the applicant may, in accordance with section 733D, appeal to the Appeal Board against the decision of the corporation.
(2)       Where the corporation has granted a planning approval any person who, in respect of the application for that planning approval, has made such representations as are referred to in section 733B (5) may, in accordance with section 733D, appeal against the grant of the approval.
(3)       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 is of opinion should have been the decision of the corporation on the application to which the appeal relates.
(4)       The Appeal Board’s determination of an appeal under this section shall be given effect to by the corporation."
It will be noted that the rights of appeal of an applicant for planning approval (a developer) are contained in subs(1), whereas the rights of appeal of a person who has made representations to the corporation considering that application (an objector) are dealt with in subs(2).

A developer may appeal if his application is refused or granted only subject to conditions. He then appeals against "the decision of the corporation". An objector may appeal where the corporation has granted approval (presumably with or without conditions or restrictions). He however appeals against "the grant of approval". Despite the change in terminology from one subsection to the next, unlike the learned trial judge, I am not able to see any significance in this, particularly as subs.(3), which applies to both types of appeal without distinction, envisages that the Board "may reverse or vary any part of the decision of the corporation" so that (i.e. for the purpose of ensuring that) "the effect of its (the Board‘s) decision is that which it is of opinion should have been the decision of the Corporation".

It would be difficult, I think, to conclude that a developer who has obtained approval but who seeks to appeal to the Board under s733C against one or more of the conditions imposed, thereby sets at risk the entirety of the decision in his favour by exposing the whole of the approval process to the critical scrutiny of the Board upon a general rehearing. Certainly s733C envisages that the Board has some supervisory power and may intrude its own views upon certain matters (as it did in the present case) whether the parties to the appeal seek to agitate such matters or not – so much is plain from the power vested in the Board to make an order in respect of any part of the corporation’s decision "whether the appeal relates to that part thereof or not", – but there is no reason to conclude as a consequence that the lodgment of a notice of appeal ipso facto puts all issues and potential issues back into the melting pot.

That the appeal to the Board is intended to be capable of limitation to specific issues between parties is very clearly borne out by reference to s733D(3), which came into existence in its present form in 1985 and s733D(3A), (3B) and (3C), which also came into existence for the first time in 1985.

These subsections provide as follows:
"(3)     As soon as practicable after the lodging of a planning appeal, the Chairman shall examine the notice of appeal and, if the nature of the appeal and the number and nature of the representations made in relation to the subject–matter of the appeal appear to him to be such as to justify the following of such a course, he may, by notice in writing given to each party to the appeal, direct the attendance at a conference before the Appeal Board, at such time and place as are specified in the notice, of all parties to the appeal for the purpose of –
(a)       ascertaining the substance of the appeal; and
(b)       obtaining the agreement of the parties on as many matters as possible relating to the appeal with a view to –
(i)determining the appeal without recourse to a hearing; or
(ii)reducing to a minimum the number of matters in issue at a subsequent hearing of the appeal.
(3A)     Subject to this Division, a compulsory conference shall be conducted in such manner as the member constituting the Appeal Board for the purposes of the compulsory conference thinks fit.
(3B)     Where a person to whom a notice to attend a compulsory conference has been given under subsection (3) does not attend that compulsory conference, the Appeal Board may proceed with the compulsory conference in his absence.
(3C)     Upon the completion of a compulsory conference–
(a)       the Appeal Board shall record–
(i)the names of the parties in attendance at the compulsory conference;
(ii)the matters (if any) on which agreement was reached at the compulsory conference; and
(iii)the matters on which agreement was not reached at the compulsory conference; and
(b)       the planning appeal shall–
(i)in a case in which agreement was reached at the compulsory conference on all matters in dispute, be deemed to have been determined by the Appeal Board accordingly; or
(ii)in any other case, proceed to a hearing by the Appeal Board subject to the Appeal Board and all parties to the appeal (whether present at the compulsory conference or not) being bound by the agreements (if any) reached at the compulsory conference."
These subsections, taken together with s733G(6), set up a system somewhat similar to the pre–trial conference system which applies in the Supreme Court civil jurisdiction. It gives the Chairman of the Appeal Board (or his delegate) powers and initiatives plainly designed to limit the issues requiring determination by the "full" Board. Also, very significantly, it provides (subs(3c)(b)) that on completion of a compulsory conference where "agreement was reached ... on all matters in dispute", the planning appeal is "deemed to have been determined by the Appeal Board accordingly".

On the other hand, subs(3) refers to "the subject matter of the appeal" and the need for the Chairman to confer with the parties "for the purpose of (a) ascertaining the substance of the appeal ...". These two phrases, particularly the latter, used in context seem to suggest that the scope of the appeal may not necessarily be circumscribed by the specification of grounds or the definition of issues by the parties or their representatives.

It seems to me that some of the problems which arise in defining the ambit of an appeal to a tribunal such as the Planning Appeal Board stem from attempting to fit such a procedure into the preconceived frameworks which tend to present themselves to a lawyer‘s mind upon considering such terms as "appeal stricto sensu", "appeal by way of rehearing" and "appeal by way of rehearing de novo". However, as Wallace ACJ observed in Bopark Building (No 8) Pty Ltd v The Minister [1968] 3 N.S.W.R. 183 at 186:

"To say that a court is a court of rehearing does not mean that it hears ’appeals‘ as though they are matters being heard for the first time in a court of original jurisdiction".

In my opinion there is no principle which prevents an appeal such as the present being seen as one by way of "rehearing" but only in the sense that, in respect of disputed issues, the tribunal has plenary powers and indeed a duty to re–examine the whole of the relevant evidentiary material anew and to hear or receive additional evidence, whereas, if the appellant, whether the developer or an objector, chooses to limit the issues in dispute, there is no reason for the tribunal to consider unchallenged matters. (See the observations of Walsh JA in Bopark Building (No 8) Pty Ltd v The Minister (supra) at 191 (lines 4–57)). In the case before us the present respondents gave notice of appeal nominating only two specific issues. Although the Board dealt with the preliminary issues under reg9A in a questionable manner, it did go on to deal with those two issues on their merits and it is difficult to see any reason why the respondents should be afforded a further opportunity of widening their appeal to include all those issues which they unsuccessfully sought to introduce by delivering particulars in the terms set forth in Annexure "H" to Geoffrey Leigh Sealy’s affidavit sworn on 10 July 1990.

If the appeal were to go back for determination in accordance with the views of the learned trial judge, the respondents would not only be able to pursue all of those matters, but they would also be able to introduce entirely fresh issues as to the merits of the proposed development. I see nothing in the legislative scheme to suggest that an appellant who chooses to nominate particular grounds of appeal challenging discrete aspects of the Council‘s decision within the statutory time limit of 14 days (s733D(2)) may thereafter, with or without notice to the developer, the Council or other interested parties, appear at the hearing with an entitlement to impugn the whole of the relevant determination.

If such a situation were to be permitted, the Board’s only power to control potentially wide ranging attacks would seem to be in granting an adjournment to a party surprised by late disclosure of the true ambit of the challenge but this may be a quite inadequate safeguard bearing in mind the considerable financial penalty that delay in itself can inflict upon a developer, notwithstanding the Board‘s power to award costs against a party guilty of unreasonable or improper conduct, as provided in s733D(8).

This of course is not to say that a prospective appellant cannot expose the whole of the Council’s decision to a redetermination by the Appeal Board provided he gives adequate and timely notice of his intention to do so. Plainly he may do this and, if he does, a rehearing in the quarter sessions appeal sense will ensue.

One remaining matter must be considered. The respondents sought to raise with the Appeal Board the question whether the Council had failed to proceed in accordance with the Battery Point Planning Scheme with the result that the approval granted by the Council was void. Without doubt the proper and preferable way to determine this question was by making an application to the Supreme Court for an injunction or declaratory order. It is an exercise in futility for appellants to invoke the Board‘s jurisdiction by lodging a notice of appeal and then seek to persuade the Board that it has no jurisdiction to entertain that appeal.

Nonetheless once the issue was broached the Board should have determined it as best it could upon the material available to it. It was not entitled to avoid this jurisdictional problem and proceed as if it did not exist. See Parisienne Basket Shoes Pty Ltd v Whyte (1937–38) 59 CLR 369 at 374–375, per Latham CJ. Jurisdictional issues are always within the province of the body whose jurisdiction is in question. Furthermore, such issues must be determined irrespective of whether or not they have been raised in a ground of appeal provided it is made to appear that a genuine jurisdictional question exists.

Consequently the Board was in error in the present case in failing to determine the issue once it was raised. This is not to say that the Board’s resolution of the jurisdictional issue would be conclusive in the sense that by making a finding it could pre–empt or exclude the Supreme Court‘s power to consider the same issue and if necessary reach a contrary conclusion. (See Yaffe v City of Fitzroy [1967] VR 376 at 379–385). It does however mean that it should satisfy itself that it has jurisdictional competence to proceed with the appeal once that issue is squarely raised for its consideration provided of course that appropriate material is presented to provide prima facie support for the submission. As I understand it, the present respondents maintain that the Council’s decision was void for non–compliance with the Battery Point Planning Scheme. If they succeed in persuading the Planning Appeal Board that the Council‘s approval was void and of no effect, it is difficult to see how that will advance their cause at all. The developers may of course accept the Board’s decision on this point and abandon their proposal, or alternatively, they may re–apply to the Council for fresh approval. They may however, take the view that the Board‘s decision upon this point was erroneous and that the Council’s approval was legally correct. The developer may then seek to proceed in accordance with the Council‘s original approval. If the Council agrees with the Board and reconsiders its position, concluding for itself, that it should not have granted the original approval, it may seek to prevent the developer from proceeding in accordance with that approval. If however, it agrees with the developer and rejects the Board’s determination upon this jurisdictional point, (as it is entitled to do notwithstanding the provisions of s733C(4) of the Local Government Act 1962), no doubt it will become incumbent upon the present respondent to institute proceedings against the developer for an injunction.

If on the other hand, the Appeal Board determines that it has jurisdiction to hear the appeal on its merits, the outcome may be impugned by the respondent challenging the validity of the Council‘s original approval in this Court.

I have mentioned these various possibilities and permutations for the purpose of illustrating that whatever the Appeal Board may think of the respondents' jurisdictional argument, its determination upon that issue will not be conclusive. Assuming that the respondents will persevere with their jurisdictional argument if the matter goes back for redetermination by the Appeal Board pursuant to Zeeman J.‘s order, it will remain highly likely, if not inevitable, that the Supreme Court will have to determine the validity of the Council’s approval in subsequent proceedings unless the respondents succeed on the merits to the extent of satisfying the Board that the Council should not have approved the development either with or without conditions.

It was contended by the appellants that the respondents had precluded themselves from obtaining the benefit of the special relief sought by their conduct in failing to challenge the legality of the Council‘s planning approval in separate proceedings. It was argued that they had in effect elected to proceed to a review of the approval on the merits. Reliance was placed upon R. v Magistrates’ Court at Lilydale ex parte Ciccone [1973] VR 122; R. v Williams ex parte Phillips [1914] 1 KB 608 and R. v Justices of Rankine River ex parte Sydney ex parte Pluto (1962) 3 FLR 215, but in my opinion, these decisions are plainly distinguishable. In any event, Ridge v Baldwin [1964] AC 40 is authority contrary to this submission.

It is plainly envisaged by the provisions of s75(12) and (13) of the Supreme Court Civil Procedure Act 1931, that applicants for a writ of certiorari may, by their conduct, disentitle themselves to such a writ.

It was contended by counsel for the respondents that unless his clients had by some positive misconduct disentitled themselves to a writ of certiorari they were entitled to that remedy as of right. However, a reading of s75 of the Supreme Court Civil Procedure Act 1932 as a whole, does not lead me to that conclusion. It is noteworthy that subs(13) enjoins the court to "have regard to all the circumstances". The concept of ex debito justitiae in relation to certiorari was described by Sir Wilfrid Greene MR in R. v Stafford Justices Ex parte Stafford Corporation [1940] 2 KB 33 at 43 in the following terms:

"Now, in my opinion, the order for the issue of the writ of certiorari is, except in cases where it goes as of course, strictly in all cases a matter of discretion. It is perfectly true to say that if no special circumstances exist, and if all that appears is a clear excess of jurisdiction, then a person aggrieved by that is entitled ex debito justitiae to his order. That merely means this, in my judgment, that the court in such circumstances will exercise its discretion by granting the relief. In all discretionary remedies it is well known and settled that in certain circumstances – I will not say in all of them, but in a great many of them – the court, although nominally it has a discretion, if it is to act according to the ordinary principles upon which judicial discretion is exercised, must exercise that discretion in a particular way, and if a judge at a trial refuses to do so, then the Court of Appeal will set the matter right. But when once it is established that in deciding whether or not a particular remedy shall be granted the court is entitled to inquire into the conduct of the applicant, and the circumstances of the case, in order to ascertain whether it is proper or not proper to grant the remedy sought, the case must in my judgment be one of discretion."

In my opinion these principles apply to proceedings which come within s75(12)(c) of the Supreme Court Civil Procedure Act 1932.

The existence of an alternative remedy, (usually a right of appeal but not necessarily so), is also a relevant factor to be considered when determining what orders should be made on an application for a prerogative writ. Furthermore, no such order will usually be made where it would be futile or serve no useful purpose to do so. (See The Queen v JohnsEx parte Public Service Association of South Australia [1971] SASR 206 at 209). Orders may also be refused where the applicant has suffered no real injustice or the challenged decision would have been the same even if the alleged error had not occurred. (See The Queen v Knightsbridge Crown Court; Ex parte Marcrest Properties Ltd [1983] 1 WLR 300 at 313.

The Court must always be cautious in giving weight to these considerations where there is prima facie entitlement to a writ as of right. However, as the relevant determination by the Appeal Board was not, in my view, one which was "illegal on its face" (in which case no discretion appears to exist under s75(12)(b) of the Supreme Court Civil Procedure Act), the foregoing matters may be considered. Once this process is undertaken, it becomes apparent I think that the respondents had very little to complain about. I do not understand them to suggest that the Appeal Board erred in declining to allow them to expand their grounds of appeal. Indeed, in declining to permit them to do so I think the Appeal Board was plainly correct. As I have already said, on my interpretation of the relevant provisions in the Local Government Act they were not entitled to insist upon a full rehearing de novo before the Board.

With the exception of the Board‘s failure to determine the jurisdictional point under the Battery Point Planning Scheme, any other alleged deficiencies in the Board’s procedure enured to the respondents' benefit.

Whilst it is true that the Appeal Board failed to state clearly that the defects in the respondents' notice of appeal were not material to a proper consideration of the appeal and that it would exercise its discretion in favour of the respondents so that the appeal could proceed to determination upon its merits, it in fact proceeded as though it had made those determinations. There can be no other explanation for the course which it actually took. In my opinion one is not restricted to considering what the Board may or may not have said in relation to these issues. (See R. v Nicholl; Ex parte Grey (1985) 63 ACTR 7). We have before us evidence of what the Board actually did. It proceeded to hear the appeal as if it had decided these issues in the respondents' favour. There is no more advantageous position which the respondent could hope to achieve as to this aspect of the appeal if the matter were to go back to the Board for rehearing. I am therefore not persuaded that anything the Board did up to the point at which it embarked upon a hearing of the appeal on its merits was illegal. Even if I am wrong as to this there can be little doubt that the Board would have proceeded in the same way that it did even if it had followed the distinct steps which were technically required of it under reg9A. It can scarcely be suggested that in the circumstances of this case the respondents' omission to provide the number of the planning application and the name and date of the newspaper in which the Council‘s decision was published, could in any way be material to a proper consideration of the appeal by the Board or that a redetermination of these issues could have assisted the respondents to a more favourable outcome.

Zeeman J does not appear to have considered these points in determining whether or not to exercise his discretion to make the orders sought. He appears to have proceeded on the basis that once a deficiency in procedure was demonstrated, this was enough to justify making both orders absolute.

With respect, I think this was a wrong conclusion in the circumstances. The respondents induced the Appeal Board to hear and determine the appeal upon the limited grounds of which they had given notice on 13 March 1990, notwithstanding the deficiencies in their notice of appeal. The appeal was dismissed upon the merits. If it were to go back for redetermination in accordance with the views that I have expressed in this judgment, there is no reason to expect that the respondents would achieve a more favourable result. Accordingly, it is my view that if Zeeman J’s attention had been directed to these matters and he had properly appreciated the restricted nature of the appeal before the Board, he would have declined to make either of the orders absolute.

In summary, therefore, my conclusions are as follows:

1That the Board did not fail to determine the relevant issues arising under reg9A and it did not fail in consequence to determine whether or not to exercise the discretion vested in it under reg.A(2) to embark upon a hearing of the appeal upon its merits.
2If my conclusions stated in para.1 are wrong, the respondents suffered no injustice thereby and a proper exercise of discretion would not warrant making certiorari absolute on this ground alone.
3The Board was in error in failing to determine the jurisdictional point arising under the Battery Point Planning Scheme before embarking upon the issues raised in the notice of appeal upon their merits. However, to send the matter back to the Board because of this error will neither facilitate nor bring about a final resolution of this question. It can only be finally determined in separate proceedings.
4In considering the appeal on its merits, the Board was not in error in conducting a rehearing in a limited sense so that it restricted the appellants to the grounds of appeal which were set forth in their notice of appeal dated 13 March 1990. Accordingly the respondents have not been deprived of any procedural or substantive rights which would justify orders quashing the Board‘s determination or remitting the matter to the Board for rehearing.
5In all the circumstances therefore, the orders made by Zeeman J should not have been made and the current appeal against those orders should be allowed.

I would quash the orders absolute for certiorari and mandamus and discharge the order nisi.
Serial No 1/1991

List "A"
File No. FCA 88/1990

SANDY BAY DEVELOPMENTS PTY LTD v.
ROBERT LORING and MARGARET LORING

REASONS FOR JUDGMENT FULL COURT

CRAWFORD J.
18 January 1991

An application was made to the Hobart City Council for planning approval, the proposed development being described as "Supermarket Extension – Including Mall, Offices, Bank, Shops and Car–park" in the Sandy Bay shopping area. The site was subject to the Battery Point Planning Scheme 1979, parts of the land being respectively zoned as Suburban Shopping and Residential, and a further part of the site being a public road.

In accordance with s133B(3) of the Local Government Act 1962 the application was advertised on 18 November 1989. The respondents, on or about 30 November 1989, within the time allowed by subs(5), made representations to the council by letter. They lived close to the proposed development. They objected to the proposal in some detail.

The council granted planning approval subject to 46 conditions. On 3 March 1990 it advertised notice of its decision in compliance with s733B(8) and (9). The respondents thereupon became entitled to appeal against the grant of the approval pursuant to s733C(2), because they had made representations under s733B(5). Prior to an amending Act in 1985, s733D(1) provided that a planning appeal should be instituted by lodging a notice of appeal with the clerk to the Commissioner for Town and Country Planning and subs(3) provided that the "notice of appeal ... shall identify the decision in respect of which the appeal is instituted and specify the person instituting the appeal, and shall set forth briefly the grounds of the appeal....". However the Act was amended by the Local Government Amendment (Development and Building) Act 1985 so that s733D(1) thereafter provided that a "planning appeal shall be instituted by lodging a notice of appeal, as prescribed, with the clerk to the Commissioner" and the provisions of subs(3) were removed. By the Local Government Regulations 1978 as amended in 1986 and 1987 it was provided by reg9A as follows:–
"9A – (1) Subject to subregulation (2), 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 was 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 section 733D(1) of the Act 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".
By letter dated 13 March 1990, received by the clerk to the Commissioner on 15 March, the respondents purported to lodge a notice of appeal in the following terms:–
"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."

It is apparent that the notice of appeal failed to comply with reg9A(1) in the following respects:–

1It did not specify the number of the planning application to which the council’s decision related (reg 9A(1)(a)(ii)).
2It did not specify the name and date of the newspaper in which notice of the decision had been published (reg 9A(1)(a)(v)).
3It did not specify the name and address of the person who had made the planning application (reg 9A(1)(a)(vii)).

It was argued by the appellant to the Appeal Board, Zeeman J and this court that although the second paragraph might have contained grounds of appeal, the third paragraph revealed a failure to specify all the grounds of appeal and therefore there was non–compliance with reg9A(1)(b). The simple answer to this is that the third paragraph does not reveal a failure to specify all the grounds of appeal. But in any event merely because an appellant forms an intention to argue additional grounds of appeal, whether or not he indicates that intention in the notice, is no basis for holding that an otherwise valid notice of appeal contravenes the regulation. I agree with Zeeman J that the regulation is not framed in terms which prohibit the inclusion within a notice of appeal of material other than that provided for in the regulation. The regulation prescribes minimum requirements as to the contents of a notice of appeal. Once those minimum requirements have been satisfied it does not matter that the notice contains other material.

The fact that the notice of appeal did not comply with reg9A(1)(a)(ii), (v) and (vii) was not raised before the Appeal Board nor before Zeeman J. It was Zeeman J who first raised non–compliance with sub–paragraphs (ii) and (v) in his reasons for judgment, he making no mention even then of the failure to comply with sub–paragraph (vii). Clearly, those failures were not material to a proper consideration of the subject matter of the appeal and I have no doubt that had the Board‘s attention been drawn to these particular failures, it would have directed under subreg(2) that the relevant requirements of subreg(1) be dispensed with.

By letter dated 3 April 1990 the clerk to the Commissioner advised Mrs Loring (and I expect, the other parties) that the appeal would be heard on 24 April. However the hearing was adjourned to commence on 28 May. On 11 May the clerk wrote to Mr and Mrs Loring (and I expect, the other parties) advising that the chairman of the Board had asked him to list a "preliminary hearing" for 14 May "so that the scope of the appeal can be defined". On the same day Mr and Mrs Loring first instructed a solicitor to act for them in relation to the appeal. The Board which eventually heard the appeal consisted of the chairman and two other members, but only the chairman attended the "preliminary hearing" which had no legal status. The chairman "ruled" that the notice of the appeal was competent insofar as its second paragraph contained grounds of appeal. On 16 May the solicitor for Mr and Mrs Loring caused to be delivered to the clerk to the Commissioner and to the other parties to the appeal, a document entitled "Appellant’s Particulars of Grounds of Appeal". It was over 3 pages long and purported to contain 14 grounds of appeal which included the grounds contained in the original notice of appeal but raised many new matters. A further preliminary meeting with the chairman occurred on 17 May. It had no legal status either. Counsel for Mr and Mrs Loring handed to the chairman the Appellant‘s Particulars of Grounds of Appeal and applied for an adjournment of the hearing of the appeal to enable him to obtain instructions, address the question of traffic and appoint a town planning expert to deal with planning issues. Counsel for Sandy Bay Developments Pty Ltd objected to the late receipt of grounds of appeal. The chairman decided that the Board should deal with the matter.

Accordingly, on 21 May the Board, consisting of three members including the chairman, conducted a hearing. Counsel for Mr and Mrs Loring and for Sandy Bay Developments Pty Ltd appeared and produced written arguments. In summary the argument for Sandy Bay Developments Pty Ltd was that the letter of 13 March 1990 from Mr and Mrs Loring did not constitute a valid notice of appeal, particularly because it stated in the third paragraph:– "Further details of our appeal will be provided when a date for the hearing has been set". It was argued that the letter was no more than an expression of dissatisfaction with the decision of the council and a foreshadowing of a wish to appeal on grounds to be articulated later. Reference was made to the provisions of reg9A(2) and the power therein to dispense with non–material failures to comply with the requirements of subreg(1). It was submitted that except in respect of mere informalities, the statement of the grounds of appeal in the notice of appeal must always be "material to a proper consideration of the subject–matter of the appeal" and that it will only be in the most unusual and extraordinary circumstances that the discretion inferred by the sub–regulation to dispense with the requirement to set out the grounds of appeal will ever arise. As to the proposed new grounds of appeal, it was argued there was the clearest possible case of a material non–compliance.

For Mr and Mrs Loring it was submitted to the Board that the reference in subreg(2) to "the subject–matter of the appeal" is to the totality of the planning issues raised by the development application and not to the issues raised by the grounds of appeal. It was argued that a planning appeal involves a hearing de novo and an appeal may be decided on grounds other than those raised by the parties.

It was agreed between the parties and the Board that the Board would determine the following three questions:–

"1Whether the letter dated 13 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."

It should be kept in mind that the only possible failure to comply being considered by anyone at that time was the alleged failure in the letter of 13 March to "set out in summary form, the grounds of the appeal" (reg9A(1)(b)). Later on 21 May the Board published its answers to the questions in the following terms:–

"QUESTION 1
1.1Insofar as the letter dated the 13 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.
4.The 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.
5.The appellants’ application for an adjournment of the hearing from the 28th May 1990, is refused."

The answers to question 1 were correct and on the hearing of this appeal, counsel did not seek to argue to the contrary. The answer to question 2 was incorrect but nothing flowed from it. Although the third paragraph of the notice of appeal dated 13 March was not in any way a compliance with reg9A(1), it did not cause the notice to fail to comply with the sub–regulation.

Answer 3.1 must be read in conjunction with answer 3.2, the latter being incorrect simply because the third paragraph of the notice of appeal dated 13 March did not cause the notice to fail to comply with a requirement of subreg(1). But nothing flows from this because the Board proceeded to hear the appeal.

Answers 4 and 5 were not in response to any of questions 1, 2 and 3 but they dealt with matters which were before the Board for its decision.

In my view the Board‘s answers numbered 1.2, 2, 3.1, 3.2 and 4 revealed that the Board’s attitude was that the statement in the notice of appeal that further details of the appeal would be provided was an invalid means of having included within the ambit of the notice of appeal grounds which would subsequently be stated, but at the same time the Board considered that it had a discretion whether or not it would allow Mr and Mrs Loring to raise grounds of appeal or objection to the proposed development at the hearing of the appeal which were not encompassed by the grounds expressly contained in the notice. The Board gave no reasons for exercising its discretion against Mr and Mrs Loring, except to say that it would be unjust, but I would think that it did so because it considered it unjust to allow them to raise such an extensive number of matters at such a late stage, it then being only seven days before the hearing of the appeal on its merits was due to commence.

One of the grounds upon which Zeeman J ordered that the writs of certiorari and mandamus issue was that the Board had no jurisdiction to hear the appeal instituted by Mr. and Mrs. Loring unless it first determined whether the notice of appeal in any respect failed to comply with a requirement of reg9A(1) and, noting that the notice plainly did not comply at least as to the requirements of subreg(1)(a)(ii) and (v), unless it exercised its discretion in favour of Mr and Mrs Loring pursuant to subreg(2) by deciding that it was satisfied that the failure to comply was not material to a proper consideration of the subject matter of the appeal and by thereupon directing that the breached requirement be dispensed with.

With respect I consider that the issue of the writs on that ground was wrong. The Board clearly assumed jurisdiction and heard the appeal of Mr and Mrs Loring on its merits. That is what they wanted. They were the prosecutors for certiorari and mandamus. They were not complaining that the Board should have found itself without jurisdiction for such reasons. They supported the assumption of jurisdiction and it was entirely inappropriate to direct a reconsideration of the jurisdictional question in such circumstances.

Having ruled on 21 May that, in the exercise of its discretion, the Board regarded it as unjust to allow Mr and Mrs Loring to extend the grounds of their appeal beyond the two grounds specified in the notice of appeal, the hearing of the appeal on its merits duly commenced on 28 May. Evidence was first adduced on behalf of Sandy Bay Developments Pty Ltd and then on behalf of the Council. Finally the case for Mr and Mrs Loring was presented. They sought to adduce evidence from Mr R J Graham, a town planning consultant. Counsel for Sandy Bay Developments Pty Ltd objected to the admission of much of the material contained in a proof of evidence of Mr Graham on the ground that it related to matters which did not form part of the subject matter of the appeal in so far as that subject matter was encompassed by the two grounds in the notice of appeal. The Board substantially upheld that objection and the evidence given by Mr Graham was therefore restricted. Mr and Mrs Loring also sought to adduce evidence from Mr J B.Lock, a traffic consultant. Again objection was made on behalf of Sandy Bay Developments Pty Ltd and the Board ruled that although it would allow Mr Lock to read out the entirety of his proof of evidence, it would only take notice of so much of it as in the Board‘s view was relevant to the subject matter of the appeal. The hearing proceeded accordingly. At the conclusion of the evidence the Board heard submissions from the parties and reserved its decision.

On 8 June the Board published written reasons for its decision. Those reasons recited that the notice of appeal had only raised the traffic light system and the noise from the service bay area as grounds of appeal and that the Board, in the exercise of its discretion, had determined that it would be unjust as between the parties to allow the grounds of appeal to be enlarged so as to include a comprehensive range of planning matters. The reasons further recited that the appeal was therefore restricted to the questions set out in the notice of appeal. At the end of the reasons the Board stated that it allowed the appeal to the extent that it would impose a further condition on the grant of approval but otherwise it dismissed the appeal.

Among the grounds upon which the order nisi for certiorari and mandamus was made were that the Board purported to exercise a discretion, pursuant to reg9A(2), to allow the prosecutors at the hearing of the appeal to raise only certain issues and failed to take into account the whole of the evidence of Mr Graham and Mr Lock which was sought to be adduced by the prosecutors at the hearing. Zeeman J ordered that the writs issue because of the jurisdictional question to which I have already referred and therefore did not purport to rely on this aspect for the issue of the writs. However he considered it desirable that the course adopted by the Board, involving the nature of the appeal hearing and the issues which could be raised at it, be considered by him and that he determine such questions so that when and if the Board entered upon a rehearing of the appeal on the merits it would do so in accordance with his determination. He came to the conclusion that the Board had misunderstood the nature of the appeal. He held that the appeal of Mr and Mrs Loring was against the whole of the decision of the Corporation and the Board was obliged to redetermine de novo. He held that it was wrong of the Board to limit the issues which could be raised by Mr and Mrs Loring to those contained in the grounds of the notice of appeal and that they were entitled to fully participate in the appeal without being limited in the way the Board held they were.

The questions which arise in this context seem to me to include the following:–

1Must an appellant be restricted as a matter of law to the issues raised by the grounds contained in his notice of appeal?
2If not, does the Board have a discretion whether to allow an appellant to raise issues or grounds of appeal not contained in the notice of appeal?

By virtue of s733D(1) a planning appeal can, and in my view must, be instituted by lodging with the clerk to the Commissioner a notice of appeal "as prescribed". If the lodged notice complies with the reg9A(1) the appeal has been lawfully instituted. If the lodged notice does not so comply then the appellant must obtain a favourable exercise of the Board’s discretion under subreg(2).

Under s733C(1) of the Act, when a corporation refuses to grant a planning approval or grants it subject to conditions or restrictions, the applicant may appeal to the Board "against the decision of the corporation". Under subs(2), where a corporation grants planning approval (with or without conditions or restrictions) a person who has made representations pursuant to s733B(5) may appeal "against the grant of the approval". It can be seen therefore that in either case the relevant person may appeal against the corporation‘s decision in its entirety. However, it is provided in subs(3) that on an appeal the Board may not only allow or dismiss the appeal but it may instead reverse or vary any part of the decision of the corporation "whether or not the appeal relates to that part thereof or not". With these words Parliament has clearly contemplated that an appellant will be entitled, if he so chooses, to restrict the ambit of his appeal. This makes good and practical sense. An appellant may not wish to oppose the corporation’s decision in its entirety. He may in fact substantially support it. Some examples are appropriate. A developer may only wish to appeal against a condition or restriction, say one relating to the hours during which which the proposed business may operate, or the extent to which a proposed building must be set back from a boundary. A nearby resident, for example one living downhill from a timbered area in respect of which planning approval has been given for the falling and removing of timber, may only wish to ensure that the proposed operations be prohibited within a set distance from a creek because he draws his domestic water from it and does not want it muddied. In such cases it would usually be unnecessary and unreasonable to expect that the parties, particularly the developer, should come to the hearing of the appeal with a case fully prepared in relation to every conceivable planning aspect which might be raised, notwithstanding that the other parties have indicated, by the grounds of appeal or in some other way, that they are content for the issues to be restricted.

Notwithstanding what I have said however, s733C(3) also provides that the effect of the decision of the Appeal Board shall be "that which it is of opinion should have been the decision of the corporation on the application to which the appeal relates". I do not consider that the full effect of this provision should be read down. The subsection reveals that the Board has the power to come to any decision which it considers the corporation ought to have made and that it may do so by reversing or varying any part of the corporation‘s decision, whether the appeal relates to that part or not.

The overriding power of the Board is further emphasised by the provision in s733D(4) which enables the Board, if it thinks fit, to allow any person to be heard notwithstanding that he is not a party to the appeal.

Subject to the overriding power of the Board to which I have just referred, that the parties may choose to restrict the ambit of the appeal is further revealed by the provisions of subs(3),(3A), (3B), (3C) and 3(D) of s733D. They provide that the chairman may, after the lodging of a notice of appeal, direct the attendance of the parties before the Board at a "compulsory conference" for the purpose of ascertaining the substance of the appeal and obtaining the agreement of the parties on as many matters as possible relating to the appeal, with a view to either determining the appeal without recourse to a hearing or reducing to a minimum the number of matters in issue at the eventual hearing of the appeal. There appears to be a two–fold purpose in these provisions. One is to get the parties together to see if they can resolve matters in dispute without the need for a hearing or with a view to reducing the ambit or length of the hearing. The other is to determine just what matters are in dispute and in particular to ascertain what the appellant in fact wants to raise and argue on the hearing and wants to achieve by his appeal. It should be kept in mind that many appellants lodge notices of appeal in inelegantly phrased language and without the benefit of legal advice. My own experience from having practised in this area is that at the appeal hearing an appellant might wish to raise issues of a greater or lesser number than were expected to be raised by the Board and particularly by the other parties. If it was the intention of Parliament that the issues on the hearing of the appeal would include all conceivable planning aspects there would be no need for these provisions. This further emphasises that subject to the overriding power of the Board to come to a decision which it considers has the effect of the decision the corporation should have made, the parties may limit the ambit and number of the issues to be raised at the hearing.

I agree with Zeeman J that the Board was exercising an original jurisdiction and was charged with the duty of hearing and determining the matter raised by the appeal de novo. The appeal was from a municipal corporation, not bound to act judicially, to a tribunal which was bound to so act. In such circumstances it is appropriate to cite the dictum of Jordan CJ in Ex Parte Australian Sporting Club Ltd re Dash (1947) 47 SR (NSW) 283:–

"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."

See also R v Oldham; ex parte Registrar of Motor Vehicles [1966] Tas S R 80 at 83; R v Town and Country Planning Commissioner; ex parte Scott [1970] Tas SR 154 at 169; Sportsman’s Hall Hotel Pty Ltd v Commissioner of Stamp Duties, Unreported Serial No 31990 at 2; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 at 621; Minister of State for the Navy v Rae (1945) 70 CLR 339 at p41.

Notwithstanding that an appeal to the Board is to be conducted by way of hearing de novo, this does not mean that the Board must conduct a full enquiry into the merits of the entire application for planning approval, in circumstances where the parties, and particularly the appellant, choose to have a limited form of hearing or to raise only a limited number of issues. See Bopark Building (No 8) Pty Ltd v The Minister [1968] 3 NSWR 183 at 191. The Board has the power, as I have already indicated, to go outside the issues raised by the parties but it is not obliged to do so.

The Act does not require that all grounds of appeal which may be raised at the hearing must be contained in the notice of appeal. The form of the notice of appeal however is to be prescribed by regulation. The regulations need not prescribe that grounds of appeal must be contained in the form. I agree with Zeeman J that the nature of the appeal must be determined without reference to the regulations made under the Act. See In re K R Wood & Co [1962] Tas SR 227 at 234; ElectrolyticZinc Co of Australasia v Emmerton [1971] Tas SR 385 (NC23), Unreported Serial No 1031971 at 3.

The fact that the regulations require the notice of appeal to contain grounds of appeal cannot prevent an appellant from raising grounds not originally contained in the notice. There is nothing in the Act which so provides. Further, because the Board is charged with the duty of coming to the decision it considers the corporation should have made, it may clearly allow to be raised issues not included in the notice of appeal. It is well recognised in the Courts that as a general rule parties should not be bound by the strict wording of their pleadings and that they should be allowed to amend them when, on balance in all the circumstances of the case, it is just. I cannot accept that Parliament intended that the form of the notice of appeal to be prescribed could fetter a party in such a way that he could not raise issues which might properly have been raised originally.

However if an appellant was to have an unlimited right to raise any issue on the hearing, without adequate prior notice, it would be most unfair to the other parties. Because the Board has a duty to act judicially and to comply with the rules of natural justice the principle of audi alteram partem applies to proceedings before the Board. In this connection I adopt statements in Review of Administrative Action by Aronson and Franklin (the Law Book Company Ltd. 1987) commencing at 151:–

"It is an elementary requirement of procedural fairness that persons entitled to be heard be given prior notice of the hearing and its purpose. It is equally elementary that the notice should be adequate in the sense of giving the persons sufficient time and information to effectively prepare and present his or her case, and arrange to attend the hearing or submit written representations. Such is the importance of the notice requirement that it has been described as ‘a cardinal principle’, of ‘constitutional importance’ and ‘impossible to disregard’... The information which the notice should contain will inevitably vary according to the nature and circumstances of the particular case. Obviously enough, it should specify the time, date and place of the hearing, or where and when written representations should be submitted. For the rest, it should comprise particulars sufficient to enable the person concerned to understand the issues and allegations and to marshal such evidence and argument as is required to respond to them."

The authors continued further at 154:–

"A frequent complaint is that findings have been made on issues or charges different from those originally notified, or that a course of action has been taken which could not reasonably have been anticipated. There is no impediment to amending or adding to the charges, or introducing new issues, provided persons liable to be affected are warned and given a reasonable opportunity to prepare their responses ......Adequate notice necessarily extends to giving persons sufficient time to get their ‘tackle in order’ so that they can present their case in the fullest sense."

Finally I cite from a passage commencing on 157:–

"Defects in service, inadequate time given for preparation, and the emergence of new issues, new charges or unforeseen complexities, may be remedied by an adjournment of proceedings. A failure to adjourn where that has the effect of depriving a person of an adequate opportunity to prepare or present his or her case may be a denial of natural justice. There are many good reasons why proceedings should be adjourned. A person may be unable to attend, or may need time to consider a response to new issues or to secure material evidence or legal representation.....Conversely, it has been said to delay justice is often to deny justice and a decision to postpone the hearing may be reviewable".

It is unnecessary to cite the authorities upon which the cited passages depend. The law stated in them is trite.

It follows, in my opinion, that having given notice in the notice of appeal to the other parties, and in particular to the applicant for planning approval, of the grounds upon which they appealed Mr and Mrs Loring were not entitled as of right to add fresh grounds of appeal. The Board was right in considering that it had a discretion whether or not to allow them to raise new grounds and issues so long after the appeal was instituted and so close to the date set for the hearing. In the exercise of that discretion it might have allowed them to do so at the same time considering whether the hearing should be adjourned in all fairness to Sandy Bay Developments Pty Ltd so as to enable it to prepare its case in answer and to brief appropriate and perhaps expert witnesses. It might also have refused them leave to do so on the ground of unfairness at such a late stage, taking into account also the interests of the developer in having its application for planning approval resolved without undue or unfair delay.

In this regard the relevant grounds upon which the orders nisi were made were that the Board "exercised or purported to exercise a discretion pursuant to Regulation 9A(2) of the Local Government Amendment (Development and Building) Regulations 1986 to allow the prosecutors at the hearing of the planning appeal to raise only certain issues" and "failed to take into account certain relevant considerations namely the whole of the evidence of Mr R J Graham and of Mr J B Lock which was sought to be adduced by the prosecutors on the hearing of the planning appeal". Neither ground was established. The Board had such a discretion, although not pursuant to reg9A(2). My view is that the Board did not purport to exercise it pursuant to that regulation. The evidence is insufficient to justify a conclusion that the discretion was wrongly exercised. The limitations placed on the evidence of Mr Graham and Mr Lock were not therefore shown to be wrong.

At the hearing of the planning appeal on 28 May, counsel for Mr and Mrs Loring sought to raise with the Board whether the council had power under the Battery Point Planning Scheme to grant approval of the proposal. The Board declined to decide the questions which were raised in that regard. Instead it adhered to its previous decision that Mr and Mrs Loring would not be permitted to raise issues or grounds of appeal which were not contained in their notice of appeal. Having read the reasons for judgment of Wright J I respectfully agree with what he said in relation to this aspect, except that I do not consider he is correct in his expression of his understanding that Mr and Mrs.Loring did not suggest that the Board erred in declining to allow them to expand their grounds of appeal, nor do I feel able to agree that the Board was plainly correct in declining to permit them to do so, although I accept that the decision may have been a correct one.

It is also relevant to the question whether the court should exercise its discretion under s.75(12)(c) against the application for certiorari to take into account that the prosecutors, Mr and Mrs Loring, did not raise the jurisdictional questions until a very late stage and only then at the same time as they made other unsuccessful attempts to broaden the issues to be considered by the Board. It seems to me that the Board had some basis for refusing to consider the jurisdictional questions in the circumstances and in any event the late raising of the issues is a matter which I consider should be taken into account. I agree with Wright J that certiorari should not issue on this ground.

It is therefore my decision that the orders made by Zeeman J should not have been made and the appeal against those orders should be allowed.