Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd - [2017] TASFC 14

[2017] TASFC 14

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Sultan Holdings Pty Ltd v John Fuglsang Developments Pty Ltd

[2017] TASFC 14

PARTIES:  SULTAN HOLDINGS PTY LTD
  v
  JOHN FUGLSANG DEVELOPMENTS PTY LTD
  SALAMANCA INN HOLDINGS PTY LTD
  HOBART CITY COUNCIL

FILE NO: 239/2017
JUDGMENT

APPEALED FROM: John Fuglsang Developments Pty Ltd v Sultan Holdings

Pty Ltd [2017] TASSC 1

DELIVERED ON:  22 December 2017
DELIVERED AT:  Hobart
HEARING DATES:  30, 31 May 2017
JUDGMENT OF:  Pearce J, Brett J and Porter AJ

CATCHWORDS:

Environment and Planning – Environmental planning – Development control – Matters for consideration of consent authority – Consideration of development standards – Particular development standards – Requirement of planning scheme that development of land satisfy provisions of schedules – Schedule setting out environmental management objectives – Clause of schedule stating that certain environmental objectives must be satisfied – Whether particular clause a matter to be taken into account or a prescriptive control – Prescriptive control.
Aust Dig Environment and Planning [109]
Environment and Planning – Environmental planning – Development control – Consents, approvals and permits – Validity – Generally – Certainty and finality – Condition of permit imposed by appeal tribunal for construction and management plan – Plan to be approved by officer of original planning authority – No real possibility that development will be significantly different from that proposed – Consent not invalid.
Mison v Randwick Municipal Council (1991) 23 NSWLR 734, considered.
Buzzacott v Minister for Sustainability [2013] FCAFC 191, 215 FCR 301, applied.
Aust Dig Environment and Planning [207]
Environment and Planning – Environmental impact assessment and approval – Other States and Territories – Tasmania – Requirement for application for permit for development that is a scheduled activity to be referred to environmental authority – Scheduled activity of "quarries: the extraction of any rock or gravel" and producing more than a certain quantity per year – Application for building development which included substantial excavation at more than prescribed rate – Provision related to activity as such – Activity need not amount to a quarry in the ordinary sense.
Environmental Management and Pollution Control Act 1994 (Tas), s 25(1), Sch 2.

Residents Against Improper Development Inc v Chase Property Investments Pty Ltd [2006] NSWCA 323, 149 LGERA 360; Penrith City Council v Waste Management Authority (1990) 71 LGRA 376, considered.
Aust Dig Environment and Planning [440.6]

Environment and Planning – Courts and tribunals with environmental jurisdiction – Tasmania - Resource Management and Planning Appeal Tribunal – Other matters – Issue estoppel – Issue estoppel does not apply to planning determinations – Whether in any event the decision was a fundamental part of or indispensable to the ultimate determination.
Land Use Planning and Approvals Act 1993 (Tas), ss 53(5), 62(2).
Thorpe v Corporation of the City of Charles Sturt [1999] SASC 10, followed.
Porter v Secretary of State for Transport [1996] 3 All ER 693, applied.
Aust Dig Environment and Planning [600]
Procedure – Costs – Appeals as to costs – When appeal lies – Appeals as to costs only – Where costs appeal part of a wider appeal – When substantive appeal is rejected the costs appeal is an appeal as to costs only – Principles to be applied to costs in appeals.
Supreme Court Civil Procedure Act 1932 (Tas), s 44(1).
Howlin v Clarence City Council [2013] TASFC 7, explained.
Bostik Australia Pty Ltd v Liddiard (No 2) [2009] NSWCA 304, applied.
Aust Dig Procedure [1731]

REPRESENTATION:

Counsel:
        Appellant:  S B McElwaine SC
        First and Second Respondents:       A Galasso SC, A C R Spence
        Third Respondent:  D J D Morris
Solicitors:
        Appellant:  Shaun McElwaine + Associates
        First and Second Respondents:       Page Seager
        Third Respondent:  Simmons Wolfhagen

Judgment Number: [2017] TASFC 14
Number of paragraphs: 227

Serial No 14/2017
File No 239/2017

SULTAN HOLDINGS PTY LTD v JOHN FUGLSANG DEVELOPMENTS PTY LTD, SALAMANCA INN HOLDINGS PTY LTD, HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

PEARCE J
BRETT J
PORTER AJ
22 December 2017

Orders of the Court

(a)The appeal is dismissed.
(b)The cross-appeal is allowed.
*(c)The orders of the primary judge made on 17 January 2017 in appeal 1696/2015 be amended by including, after order no 2, the following:
"2ABefore any reconsideration by the differently constituted Tribunal, the application be referred to the Board of the Environment Protection Authority pursuant to s 25(1)(b) of the Environmental Management and Pollution Control Act 1994."

(d)The costs appeal is allowed.
(e)The costs orders made on 2 February 2017 be set aside except to the extent of the grant of an indemnity certificate under the Appeal Costs Fund Act 1968 to each respondent, and in lieu, it is ordered that the respondents pay 50% of the appellants' costs of appeal 1696/2015.

* NOTE:

On 6 March 2018 the Court vacated order (c), and made the following orders in substitution:
(ca) The orders of Blow CJ dated 17 January 2017 are set aside.
(cb)The order of the Resource Management and Planning Appeal Tribunal published 27 August 2015 in appeal 20-15P is set aside.
(cc)It is declared that the decision of the Hobart City Council to grant planning permit PLN-14-01301-01-01 dated 17 September 2015 is invalid.

Serial No 14/2017
File No 239/2017

SULTAN HOLDINGS PTY LTD v JOHN FUGLSANG DEVELOPMENTS PTY LTD, SALAMANCA INN HOLDINGS PTY LTD, HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

PEARCE J
22 December 2017

I agree with Porter AJ.
File No 239/2017

SULTAN HOLDINGS PTY LTD v JOHN FUGLSANG DEVELOPMENTS PTY LTD, SALAMANCA INN HOLDINGS PTY LTD, HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

BRETT J
22 December 2017

I agree with Porter AJ.
File No 239/2017

SULTAN HOLDINGS PTY LTD v JOHN FUGLSANG DEVELOPMENTS PTY LTD, SALAMANCA INN HOLDINGS PTY LTD, HOBART CITY COUNCIL

REASONS FOR JUDGMENT FULL COURT

PORTER AJ
22 December 2017

Introduction

Sultan Holdings Pty Ltd (Sultan) applied to the Hobart City Council (the Council) for approval in relation to a "mixed use development" on the corner of Montpelier Retreat and Kirksway Place, Hobart. The proposed development was of a building with underground car parking. The proposal included at least 72 residential apartments, 29 serviced apartments, parking for 604 vehicles, at least 11 commercial tenancies together with two tenancies potentially operating as restaurants or bars, and some public open space. The applicable planning scheme is the Sullivans Cove Planning Scheme 1997 (the Scheme).
The Council granted a permit with conditions, one of which set out the requirements for a construction management plan (CMP). Appeals to the Resource Management and Planning Appeal Tribunal (the Tribunal) were lodged by various opponents of the development, two of whom were Fuglsang Developments Pty Ltd and Salamanca Inn Holdings Pty Ltd. Their interests are identical and have common representation. It is convenient to refer to them as "Fuglsang". Sultan also appealed in relation to the permit conditions, but that appeal was resolved without a hearing. The Tribunal ultimately determined that a permit should issue, but varied the condition relating to the CMP.
Fuglsang appealed to the Supreme Court against the Tribunal's decision. Blow CJ upheld the appeal on one of the 11 grounds argued, set aside the Tribunal's decision and remitted the matter for reconsideration by a differently constituted Tribunal: John Fuglsang Developments Pty Ltd v Sultan Holdings Pty Ltd [2017] TASSC 1. His Honour also ordered that Sultan and the Council pay Fuglsang's costs of the appeal "excluding those costs referable" to the ground that succeeded, and ordered that Fuglsang pay the costs of Sultan and the Council in relation to the unsuccessful grounds of appeal.
Sultan has appealed to this Court in relation to the one ground that succeeded. Fuglsang has filed a notice of contention seeking to affirm the primary judge's decision on the basis of three issues that were contained in three separate grounds of the appeal before his Honour. Fuglsang has also filed a cross-appeal in relation to one issue which was the subject of a ground of appeal that was dismissed by the primary judge. Fuglsang has also filed a notice of appeal against the costs orders. The court has heard from the parties in relation to all of these matters. As it was before the Tribunal, and at first instance, the Council was an active respondent, seeking to uphold the Tribunal's decision. In these proceedings it expressly adopted Sultan's submissions, and added some of its own. Unless otherwise made clear, my references to Sultan's position are references to both Sultan and the Council.
The focus of the appeal to the Tribunal, the appeal to the primary judge, and to these proceedings is the issue of the excavation works proposed for the development of underground car parking on the site. It was those works which were the subject of the revised condition in the permit granted by the Tribunal. Adopting the words of the primary judge, the proposed excavation is substantial. At one end of the development, it is proposed that there will be five levels of car parking wholly below the natural ground level. Between 40,000 and 50,000 cubic metres of dolerite will have to be removed by blasting. Dolerite is a hard rock. Noise and vibration arising from the excavation are at the heart of the dispute.

The legislation and the planning scheme

Sections 57(1)(a) and 58(1) of the Land Use Planning and Approvals Act 1993 (the LUPA Act) are relevant. They read as follows:
"57 Applications for discretionary permits
(1) This section applies to an application for a permit in respect of a use or development which, under the provisions of a planning scheme–
(a) is of a kind specified as being a use or development which a planning authority has a discretion to refuse or permit;
(b) ...
…
58 Application for other permits
(1) This section applies to an application for a permit in respect of a use or development for which, under the provisions of a planning scheme, a planning authority is bound to grant a permit either unconditionally or subject to conditions or restrictions.
… ."
Sultan's appeal and one of the grounds of contention relate to the construction of parts of the Scheme. The planning area is divided into "Activity Areas". Clause 16 of Part D relates to use and development in the relevant Area: Sullivans Cove. Schedule 8 of Part E is entitled "ENVIRONMENTAL MANAGEMENT". The debate concerns cl 16.2, 16.(2)(j) in particular, and cl 29.5 which is contained in Sch 8. It is necessary to set out these provisions and a number of others that are relevant to their interpretation.
The Scheme is, by its own terms, "based in part on a 'performance' approach to development control": cl 3.3. That clause says performance criteria are established to provide "a means by which the objectives of the scheme may be satisfactorily met". Somewhat inconsistently, according to the definition section, the term "Performance criteria" means "General statements of the means by which a use or development achieves 'Objectives'". "Objectives" are defined as "General statements of intention for use or development to attain as a means of satisfying the 'Principles' of the Scheme".
The Scheme uses the conceptual division between "use" and "development". "Development" is defined in the same way as it is in s 3 of the LUPA Act, and includes the construction of a building, and the construction or carrying out of works. Clause 10 requires the planning authority, before determining any application to use or develop land, to consider, among other things, the strategic policies of the Scheme and the objectives for the Activity Area.
Part D of the Scheme deals with "ACTIVITY AREA CONTROLS". Clause 13.1(b) provides that applicants for use or development in an Activity Area must demonstrate that it is able to be performed in accordance with the standards applicable in that Activity Area. Clause 13.2 notes that the provisions of each Activity Area include a description of its purpose, and the requirements that apply relating to the use of the land. It states that provisions relating to the development of land are "generally contained" in the schedules to the Scheme. (The schedules are in Part E.) Clause 13.3 makes provision for the use categories of "exempt", "permitted (s 58 of the [LUPA Act])", "discretionary (s 57)" and "prohibited". There is a note to cl 13.3 which states that development of land is dealt with separately, and in cases where the use is permitted, associated development may still be discretionary.
As noted, the relevant Activity Area is Area 2.0 – Sullivans Cove which is dealt with in cl 16. Clause 16.2 sets out objectives and performance criteria that "apply to all use and development in this Activity Area". Clause 16.2(j) is of significance. It provides as follows:

Objectives

Performance Criteria

(j)   To ensure sound environmental planning and management for all activities.
·     … .

·     All use and development must minimise direct and indirect environmental risk or effects and where possible provide a new environmental gain for the wider environment.

Clause 16.3 deals with the use of land. Some further explanation of cl 16.3 is necessary. It sets out the uses that are permitted, and those that are discretionary. Clause 16.3.2 contains a list of discretionary uses, and a "condition" relating to each use. One use refers to "Hotel", a number of other specified uses, and "All other uses not specified in clauses 16.3.1 or 16.3.3." More importantly, cl 16.4 deals with the development of land. Clause 16.4.2 reads:
"All development of land must satisfy the relevant provisions contained within the schedules of this Scheme."
Part E contains nine Schedules. As noted, it is Sch 8 that is the critical one in these proceedings. It begins with the following provisions:
"29.1 Introduction
The ecologically sustainable development of the Cove's natural and physical resources is a primary planning principle of this Scheme.
Whilst the protection and enhancement of the total natural resource stock of the Cove is important, there are a number of specific environmental issues to be addressed in the future planning for the Cove. These include protection of water quality in the Cove, minimisation of air pollution, assessment and management of land contamination on all land, waste minimisation and control of noise pollution and vibration.
This schedule outlines matters which must be considered when assessing applications for activities, and outlines the linkages of the Planning Scheme to the Environment Management & Pollution Control Act 1994.
29.2 Objectives
· To ensure that activities are managed in a way which facilitates the ecologically sustainable development of the Cove’s natural and physical resources and the maintenance of ecological processes and genetic diversity.
· To ensure that activities are managed in a way which will not cause environmental nuisance or material or serious environmental harm."
Clause 29.3 provides that "this control applies to the assessment of all permissible 'Level 1' and 'Level 2' activities in the Sullivans Cove Planning Area". Clause 29.4 contains definitions. By cl 29.4, "Permissible Activity" means an activity in respect of which a planning authority has a discretion to refuse a permit, or is bound to grant a permit either unconditionally or subject to conditions. The terms "'Level 1' Activity" and "'Level 2' Activity" are defined by reference to the meanings they have in the Environmental Management and Pollution Control Act 1994 (the EMPC Act). For present purposes, I only need to note that under that Act, a level 1 activity means an activity which may cause environmental harm and in respect of which a permit under the LUPA Act is required.
Clause 29.4 defines "Environmental Harm" as meaning environmental harm as described in s 5 of the EMPC Act. Section 5(1) of that Act provides that environmental harm is any adverse effect on the environment (of whatever degree or duration) and includes an environmental nuisance. The section contains provisions to be applied in determining whether environmental harm is material environmental harm or serious environmental harm. "Environmental nuisance" includes the emission of a pollutant. Noise is included in the definition of "pollutant".
The relevant part of cl 29.5 is as follows:
"29.5 Environmental Objectives
Where an activity constitutes either a Permissible 'Level 1' activity or a Permissible 'Level 2' activity within the relevant Activity Area, the following environmental objectives must be satisfied in determining such an application.
…
Noise
Buildings shall be sited and designed having regard to current noise levels in the area as well as their intended use.
Where activities with the potential to generate significant noise are proposed in proximity to residential accommodation and other 'noise sensitive' activities, appropriate measures to mitigate and minimise noise emissions must be undertaken.
New 'noise sensitive' activities such as residential accommodation shall be located and where necessary incorporate acoustic measures to minimise the potentially adverse impacts of existing or likely future activities on nearby land.
…".
The first two paragraphs under "Noise" are of interest in these proceedings. It is convenient to refer to them as "Noise [1]" and "Noise [2]".

Sultan's appeal

The ground of appeal upheld by the primary judge, and which gives rise to the appeal, was as follows:
"4The Tribunal erred in its determination that cl 29.5 of the Scheme did not provide matter relevant to, and hence bases for, the refusal of the proposal."
What gave rise to this complaint is the construction given to cl 29.5 and the Tribunal's approach to its application. In its reasons, the Tribunal first dealt with two "threshold arguments", one of which remains alive in these proceedings as a ground in Fuglsang's notice of contention. The Tribunal then noted that the EMPC Act "applies to this development and is relevant to its progress". It continued:
"55The Tribunal turns to the provisions of the Scheme engaged in the remaining grounds of appeal, being Clause 16.2(j) and Clause 29. These grounds of appeal focus on the issues of dust, noise and vibration from the development. This analysis informs the content of the Construction Management Plan ('CMP'), if the development, satisfies the Scheme requirements.
56Clause 29 and Clause 16.2(j) of the Scheme fall for consideration against the excavation stage because 'development' includes construction under the provisions of LUPA. The Scheme does not supplant or modify the contents of that concept. Development must comply with the Scheme, and so it is that the Tribunal must consider these provisions in this Appeal."
The Tribunal set out cls 29.2 and 29.3, and noted that the development was a permissible Level 1 activity, so that the development came within the scope of the clause. The reasons continue:
"61Clause 29.5 sets out environmental objectives relevant to an assessment of this development.
62Clause 16.2(j) articulates a performance criterion with which the development must comply if it is to be approved.
63Clause 29.5 contains objectives. Objectives do not, per se, provide a basis for refusing a proposal. Clause 10 of the Scheme requires, inter alia, that the Planning Authority must consider the objectives for the activity area. For Activity Area 2, these appear at Clause 16.2 of the Scheme. The Appellants invoke the provisions of Clause 16.2(j).
64The correct approach requires that statements of objective are given some weight in assessing the application as important elements in reaching a decision in respect of it. But they do not supplant or overrule the specific provisions of the Scheme. In considering whether to exercise the discretion to approve the development application, the Tribunal must first consider whether the use which is proposed is in harmony with the objectives, and then that it satisfies the applicable performance criteria R Brown & T Shaw v Launceston City Council and Bullock Consulting [2014] TASRMPAT 15 at 19."

Sultan argued to the Tribunal that cl 29 was concerned with the ultimate environmental performance of use and development, and not at all with the effects of construction activities. The Tribunal set out cl 29.5, noted that "activities" were not defined under the Scheme or the EMPC Act, and continued:
"68The purpose of the Objective is to ensure management of environmental nuisance, or risk arising from development. Development includes construction.
…
70… [T]he Tribunal considers that Clause 29 is applicable as an overarching statement of objectives …
71That means that the construction phase, as much as any other aspect of the development, must be in accord with the Scheme objectives."
The Tribunal then turned to consider cl 16.2(j) of the Scheme:
"72Satisfaction of Clause 16.2(j) will, it seems to the Tribunal, ipso facto, result in a development in harmony with the Objectives in Clause 29. Clause 16.2(j) imposes a standard required to be applied to the development, and to be satisfied by it. Again 'development' includes the construction phase. This clause requires that in order to fulfil the objective of ensuring 'sound environmental planning and management for all activities', use and development 'must minimise direct and indirect environmental risk or effects and where possible provide a new environmental gain for the wider environment.'
…
74Environmental risk is not defined in the Scheme. It is submitted by the Appellants that an interpretation which is consistent with the concept of environmental harm appearing in s5 of EMPCA is appropriate. That concept also appears in the objective at Clause 29.4(g) [sic]. The Tribunal accepts this submission. …
75It is accepted, implicitly, that it is an incident of development that there is a risk of environmental impact (an environmental risk). Clause 16 emphasises management of such risk. It is dictated, explicitly, that such impact should be minimised. In order to satisfy the performance criterion at 16.2(j), the development must manage the risk of environmental harm, and minimise the direct and indirect environmental risk or effects created. As has been said, development which satisfies the performance criterion at 16.2(j) will at once meet the objective articulated at Clause 29. It is logical, therefore, to focus first on the performance criterion in 16.2(j)." [Original emphasis.]
After further discussion about the approach to cl 16.2(j) and about some aspects of the evidence, and before turning to discussion of the outcome of the conference between competing experts, the Tribunal said:
"88 The Tribunal cannot ignore the possibility that the excavation works could take a considerable time, and it will assume for the purposes of this assessment that it could take as long as Mr Moore suggests. [Up to 52 weeks.] The real question is not 'How long will this take?' Rather it is whether the direct and indirect risk of environmental harm or effects, can be managed so that they are minimised to an acceptable level. That question adopts elements of the Objectives at Clause 29 (management of risk of harm) and the performance criterion at Clause 16.2(j)-(minimisation of risk). The Tribunal considers that conflating the two elements of the Scheme captures appropriately the requirement which the Scheme enshrines – that is the minimisation of risk through management of it." [Emphasis added.]

The primary judge's reasons

In these proceedings, there has been much discussion about the detail of the primary judge's reasons. I will attempt to summarise his Honour's approach in dealing with ground 4 of the appeal to him. First, his Honour said that by virtue of cl 16.3.2 Sultan's proposed use of the land was discretionary. The Tribunal, standing in the shoes of the Council had a discretion to refuse the application, subject to the condition imposed by cl 16.3.2. The condition identified by his Honour was the one that related to "Hotel", other specified uses, and "all other uses not specified in Clauses 16.3.1 or 16.3.3". The condition reads, "Must meet the objectives and performance criteria of the Activity Area to the satisfaction of the Planning Authority. Otherwise 'prohibited' and must be refused."
His Honour noted that cl 16.2 lists objectives applicable to "all use and development" in Activity Area 2.0, and in respect of each objective, specifies "Performance Criteria". He noted that cl 29.5 lists "Environmental Objectives" that are applicable to the whole of the Sullivans Cove Planning Area, and said it seemed clear "that the environmental objectives set out in cl 29.5 were separate and distinct from 'the objectives and performance criteria of the Activity Area' referred to in cl 16.3.2 [sic]." See par [35] of the reasons. In the passages that follow, his Honour said:
· The Tribunal was required first to determine whether the proposed development met the objectives and performance criteria as listed in cl 16.2, to its satisfaction. Then, if satisfied, it was required to make a discretionary decision as to whether to grant or refuse a permit. "The decision-making process was therefore a two stage process." – [36].
· It appeared that the Tribunal paid practically no attention to the second stage of the decision-making process. Clause 16.2 related to the minimisation of environmental risks and effects, and selection of the most appropriate measures to be taken to mitigate and minimise noise emissions if a permit were granted. "But there remained a fundamental question as to whether, even with the best possible permit conditions relating to noise and vibration, it would be better to refuse a permit altogether, or to impose a permit condition permitting an excavation only to a much shallower depth. The Tribunal did not address that question." – [37].
· Fuglsang did not argue that if it was open to the Tribunal to make a discretionary decision, then the Tribunal should decide to refuse a permit or drastically reduce the depth of the excavation, but the Tribunal was not, as a result, absolved from considering how to exercise its discretion if the objectives and performance criteria of cl 16.2 were satisfied. – [38].
· The combined effect of cls 16.3.2 and 16.2(j) was that the Tribunal was first obliged to determine whether the proposed use and development would minimise "environmental risks or effects". If it was satisfied that those things would be minimised, it was required to make a discretionary decision as to whether to grant or refuse a permit. "However the Tribunal proceeded as if reaching a state of satisfaction as to the minimisation of environmental risks or effects would result in a decision that a permit should be granted." – [40].
His Honour referred to [55] and [88] of the Tribunal's reasons, set out above, and noted that the Tribunal determined that the environmental risks and effects could be appropriately minimised by changing the CMP condition of the permit: [41]. His Honour said the findings made by the Tribunal as to the minimisation of "environmental risk or effects" should have led it to conclude that cl 16.2 did not prohibit the proposed development, but required the making of a discretionary decision. The Tribunal did not address how its discretion should be exercised and overlooked the second stage of the required decision-making process; it thereby erred in law: [43]. His Honour pointed out that ground 4 was directed, however, to a much narrower question; whether the Tribunal erred in law by treating cl 29.5 as not providing a basis for the refusal of the proposal: [43].
At par [44], the primary judge made a number of observations about cl 29.5. Essentially, his Honour said that, although the clause uses the expression "environmental objectives", the first sentence of the clause says that those so-called objectives "must be satisfied." If a so-called objective is a requirement that must be satisfied, then it is not an objective in the literal sense, but is a mandatory requirement. Further, his Honour said that Noise [1] – relating to the siting and design of proposed buildings – required the Tribunal to consider current noise levels and the impact of the underground part of the building on those noise levels in deciding how to exercise its discretion pursuant to cl 16.3.2, and that other provisions such as cl 16.4.2 supported this conclusion: [45]–[46]. He observed that the terms of the Scheme were such that the schedules should be regarded as guidelines, but noted the word "guidelines" was sometimes misused: [48]–[49].
His Honour then set out cl 29.1 and 29.2, and concluded:
"[51]     The third paragraph of cl 29.1, which says that the schedule 'outlines matters which must be considered when assessing applications' indicates that, as a general rule, the schedule imposes mandatory requirements for certain relevant considerations to be taken into account, as distinct from imposing mandatory requirements which must be satisfied before a permit application may be granted. However the introduction to cl 29.5 says, '… the following environmental objectives must be satisfied …'. Within cl 29.5, there are provisions that certain things 'shall be' done, and provisions as to what 'must' happen. None of those provisions impose quantitative or definite requirements. All of them require value judgments.
[52]     Counsel for the appellants submitted to me that cl 29.5 imposed requirements that had to be complied with, as distinct from specifying objectives, the non-fulfilment of which did not require a permit application to be rejected. However it is difficult to see how the requirement that a building be 'designed having regard to current noise levels in the area' could be interpreted as a mandatory requirement. But it is clear that cl 29.5 at least required the current noise levels and the noise consequences of the proposed excavation to be taken into account in the making of a discretionary decision.
[53]     It would have been open to the Tribunal, in making a discretionary decision, to decide that the noise that the excavation would generate would have such adverse effects on nearby hotels, offices and businesses, and on members of the public, that, for that reason alone, a permit should be refused. It erred in law by treating the objectives in cl 29.5 as being incapable of providing a basis for refusing a permit. Ground 4 must therefore succeed."

The grounds of Sultan's appeal

There are five grounds each containing several parts. In summary, the grounds allege that the primary judge:
Misconstrued the Scheme:
(a) by construing the environmental objectives of cl 29.5 as separate and distinct from the environmental objectives of cl 16.2(j);
(b) by determining that the Scheme required a two-stage decision-making process which erroneously required the separation of what is, in law, "an integral [sic] decision making process".
Overlooked or misunderstood "the decision-making in which the Tribunal did engage in". [The ground provides eleven instances of what the Tribunal did and said.]
At [44]:
(a) misconstrued the Scheme as expressing mandatory requirements;
(b) reasoned inconsistently with reasoning later expressed;
(c) misconstrued cl 29.5 as requiring the Tribunal to consider whether the development as designed was appropriate having regard to current noise levels in the area.
At [48]–[53]:
(a) misconstrued cl 29 as providing for prerequisite requirements which must be met before a permit is granted in the exercise of discretionary powers under s 57 of the LUPA Act, when the clause is limited to the management of noise issues;
(b) misconstrued cl 29.5 as providing for a stand-alone power to refuse the application;
(c) overlooked the decision-making process in which the Tribunal engaged.
Erred in failing to address the necessary question whether the errors which his Honour identified in the decision-making process of the Tribunal were material vitiating legal errors.

Some aspects of the primary judge's reasons

The scope of the grounds is wide. They cover what the primary judge held in order to determine the appeal, as well as comments and observations made in the reasoning process. The terms of some of the grounds, and of the arguments put by Sultan, raise questions about what his Honour actually held, what he actually said, and what he can reasonably be taken as having said. Questions of interpretation are involved. Additionally, as will be seen, it is common ground that, with respect, his Honour seems to have misunderstood the identity of the provisions relied on by the parties as significant. It follows from all of this that there are some matters that need to be addressed in order to isolate the real issues.
First, ground 1(b) of Sultan's appeal alleges error in determining that the Scheme required the Tribunal to engage in a "two-stage decision-making process". His Honour uses that term in pars [36] and [37], and alludes to the concept in par [40]. Sultan argues that his Honour's reasoning process separates consideration of the objectives and the performance criteria of cl 16.2(j) from the discretionary decision to grant or refuse a permit under s 57 of the LUPA Act. It says that this approach also separates the objectives and performance criteria of cl 16.2 from "the complementary considerations at cl 29". In support of ground 2, Sultan argues that his Honour, "informed by the two-stage process, reasoned, and concluded, that the Tribunal overlooked the second stage". It argues that the "two-stage process" finding led to further error on the part of the primary judge in relation to the construction of cl 29.5 as providing for mandatory requirements: ground 3(a).
Relying on Meander Valley Council v Resource Management and Planning Appeal Tribunal [2013] TASSC 42, 23 Tas R 14 at [10], Sultan submits that the exercise of the s 57 discretion is an integrated process. In that case, the Tribunal decided that a permit should issue, but left it to the parties to prepare a schedule of conditions to be attached to the permit for its consideration. Estcourt J said that the permit and the conditions were not two separate things, but components of a single process; his Honour was unable to see how a decision to grant a permit could be made without consideration of specific conditions to be imposed on that permit as being necessary to justify the exercise of the discretion.
Fuglsang accepts that it is wrong to suggest that a two-stage decision-making process is entrenched in in the legislative scheme. It accepts there are no true two stages, although it does point to authority for the proposition that where a planning scheme requires a planning authority to form the opinion that a development is consistent with a specified objective, the power to grant consent is not enlivened until that opinion is formed: Conservation of North Ocean Shores Inc v Byron Shire Council [2009] NSWLEC 69, 167 LGERA 52. Fuglsang submits that if the primary judge actually intended to delineate two stages as suggested, it is not a material error in relation to the ultimate conclusion as to cl 29.5. However, it says that his Honour was merely using a shorthand description for the proper approach to the application of the Scheme in the discretionary process, and did not intend to endorse a statutory two-stage process.
I do not think that the primary judge can reasonably be taken to have suggested that, as a matter of law, there were two stages in the discretionary process under s 57. What his Honour said amounted to a two-stage process, was that the Tribunal was required to first determine whether the development satisfied cl 16.2, and if so satisfied, to then make a decision whether to grant or refuse a permit. As to that, I think there are number of things to be undertaken in dealing with an application. Speaking in practical terms, these may well be done in a logical sequence. In reality, the first step would be to examine the application in light of the provisions of the planning scheme to establish it is whether it is s 57 or s 58 that applies. If it is s 57 that applies, the next step would be assess the proposal for compliance with the provisions of the Scheme, and to measure it against the Scheme's objectives. That process would inform the exercise of the discretion.
As matter of law, the exercise of the s 57 discretion does involve an integrated process of synthesis. But I am not at all persuaded that his Honour's reference to a two stage process was to something other than the practical approach that might ordinarily be expected. I think it unlikely that his Honour misunderstood the process under s 57, as is alleged. Even if I am wrong about what the primary judge intended by the reference to a two-stage process, I do not think that the success of the appeal immediately follows. The central issue is the correctness of what his Honour said about the status of the environmental objectives in cl 29.5. My use of the word "status" is intended to encompass the issues of whether cl 29.5 is to be treated as separate and distinct from cl 16.2, and whether its provisions are mandatory requirements. As will be seen, there is also a live issue as to whether the Tribunal, as his Honour suggested, in fact proceeded as if reaching a state of satisfaction about the minimisation of environmental risk or effects would result in a decision that a permit should be granted. That remains an issue, however the decision-making process is viewed.
The second issue relates to ground 3(c). Sultan complains that the primary judge wrongly directed his attention to Noise [1] in cl 29.5 which relates to the siting and design of buildings. Sultan says that his Honour "impermissibly strayed beyond the framing of the issues", and that this must be taken to have influenced the "ultimately erroneous conclusions". This is presumably a reference to [52] and [53] of his Honour's reasons, set out above. It is true that the issue of the siting and design of the building under Noise [1] in cl 29.5 was not argued in the first instance appeal. All parties to the present appeal agree that the issue was not, and is not, relevant. They agree that it is Noise [2] that is the relevant part. (This Court therefore does not have to decide any issue relating to Noise [1].)
Again, I am just not able to see how his Honour's discussion affected the construction he gave to cl 29.5. It is true that his Honour referred to cl 29.5 as at least requiring current noise levels and the noise consequences of the proposed excavation to be taken into account. It is true that the quoted phrase comes from Noise [1]. However, the principle upon which his Honour was proceeding is clear. It was that cl 29.5 contains matters which must be taken into account in making a discretionary decision. His Honour was plainly referring to that part of the Tribunal's reasons in which it said objectives such as contained in cl 29.5 did not, per se, provide a basis for refusing a proposal.
The next matter relates to ground 4(b). This alleges error in misconstruing cl 29.5 as providing for "a stand-alone power" to refuse the development application. Sultan says this is not what Fuglsang advanced in ground 4 of the first instance appeal. Although ground 4 of the first instance appeal is not happily drafted, it is true that Fuglsang did not, and does not, endorse the proposition of a stand-alone power. Sultan's argument again seems to be based on what the primary judge said in [52] and [53]. Sultan's point is that while cl 29.5 sets out relevant matters to be considered in the exercise of the discretion, it does not of itself "set up" a s 57 discretion in the sense that it is not a provision that makes a development discretionary. In the case of an application to which s 58 applies, a planning authority could only use cl 29.5 as a basis for imposing conditions. Senior counsel for Sultan went to great lengths in these proceedings to point out that Sch 8, unlike seven of the other nine schedules contained in Pt E, does not have any controlling role to play in establishing whether development is exempt, permitted, discretionary or prohibited.

Sultan's point is incontrovertible. The application was made discretionary under s 57 because of the operation of Sch 1 – Conservation of Cultural Heritage Values, Sch 2 – Urban Form, and Sch 7 – Demolition. None of those provisions relate to the proposed excavation. But Sultan accepts the proposition that where there is an application to which s 57 applies, it is to be measured for compliance with all applicable provisions of a planning scheme. And more importantly as to this case, Sultan expressly accepts that cl 29.5 is a matter relevant to the exercise of the discretion, and may in an appropriate case, form a basis for a refusal. That is, although Sultan submits that Sch 8 is a management tool only, it accepts that considerations of cl 29.5 issues could lead to a refusal.
The argument seems to depend on an interpretation of what his Honour said in [53]. It is there where his Honour referred to the making of a discretionary decision. It will be recalled that his Honour said that in making such a decision it would have been open for the Tribunal to decide that the excavation would have such adverse effects, that for that reason alone, a permit should be refused. Even taking into account the whole of the relevant passages, I have great difficulty in seeing how his Honour can be taken to have construed cl 29 as creating the basis for an application to be treated as discretionary. It seems to me that his Honour was simply saying no more than, in the context of making a discretionary decision, a consideration of cl 29.5 could have led to a refusal. As a matter of principle, so much is expressly conceded by Sultan. Even if his Honour did make that mistake, which I strongly doubt, given the concessions made by Sultan, it does not seem to have any consequences. The real point is how the Tribunal treated cl 29.5, and the approach it took. However, I can see that the point made about the significance of cl 29 in relation to s 57 would be relevant to the issue of the status of cl 29.5.
That leads to further mention of ground 4 of the first instance appeal. It alleges error on the part of the Tribunal in determining that cl 29.5 "did not provide matter [sic] relevant to, and hence bases for," a refusal. [My emphasis.] Fuglsang contends that the ground should not be interpreted in the confined way as it was by the primary judge. The ground is said to cover both the narrow interpretation issue as to the role of cl 29.5, as well as a broader issue relating to noise minimisation and the exercise of the s 57 discretion. On the "narrow" view of the ground, Fuglsang says that the Tribunal was wrong in not treating cl 29.5 as having a separate and discrete operation from cl 16.2(j), and by saying that the objectives contained in cl 29.5 do not, per se, provide a basis for refusing a proposal. It says that the Tribunal was wrong to say that a development which satisfied the performance criterion at cl 16.2(j) "will at once meet the objective [sic] articulated at Clause 29".
As to the broader view of the ground, the argument is that the Tribunal essentially proceeded as suggested by the primary judge at [40] and [53]. That is, it proceeded as if reaching a state of satisfaction as to the minimisation of environmental risks or effects, particularly noise, would result in a decision that a permit should be granted, and failed to consider whether the ultimate situation was such that the permit should be refused. As is evidenced by ground 2 of the appeal, Sultan does not argue that the broad view is not open. That ground challenges the primary judge's comments about the way in which the Tribunal proceeded. Sultan argues that the Tribunal was demonstrably conscious of the discretionary options open to it, but exercised its discretion in favour of a grant subject to conditions.
There is one further matter. It was also argued under ground 4 of the appeal to this Court. It relates to the primary judge's references to cl 16.3.2 in pars [34], [35] and [45]. From the words quoted by his Honour, it is quite clear the references were intentional. As noted above, cl 16.3.2 prescribes discretionary uses. With respect to the primary judge, it is common ground that cl 16.3.2 is of little direct relevance to the issues in these proceedings. It is the provisions relating to development that are important. In cl 16, it is cls 16.2 and 16.4.2 that are more critical. Sultan seems to accept that if his Honour's references were to cl 16.4.2 instead, no real difficulty arises, but it says that the mistaken reference led to other errors. I am afraid that I am not able to see how that is so.
The "catch all" use class in cl 16.3.2 referred to by his Honour, has as a condition, that the use must meet the objectives and performance criteria of the Activity Area to the satisfaction of the planning authority. Clause 16.4.2 stipulates that all development must satisfy the relevant provisions contained within the Schedule. Although expressed differently, the intention behind each clause is basically the same. If references to cl 16.4.2 are substituted in his Honour's reasons for the references to cl 16.3.2, his reasoning is left unaffected.

The status of the cl 29.5 objectives

As I have noted, Sultan expressly conceded that in relation to a discretionary development, a planning authority is required to take into account considerations under cl 29.5. In counsel's words, "They may be so extreme that they would compel the exercise of the discretion to refuse the permit. We accept that." At least on a strict view of ground 4 in the first instance appeal, it follows from the concession that the ground was made out, and that the primary judge was correct to that extent; cl 29.5 can provide matter relevant to and hence a basis for refusal.
However, the critical debate is about whether the Tribunal was correct in its interpretation of the role of cl 29. The Tribunal's approach was to say that the cl 29.5 objectives did not, as such, provide a basis for refusal but should be given some weight in assessing the application; that it was the cl 16.2(j) performance criteria that needed to be satisfied, and if satisfied, the development was in harmony with the cl 29.5 objectives. Sultan's appeal involves the question whether the cl 29.5 objectives are simply matters to be taken into account, or whether they are prescriptive controls that must be satisfied.
By way of an overview, insofar as an application relates to development, the Scheme's provisions are as follows.
·     An applicant "must demonstrate" that the proposed development "is able to be performed in accordance with the standards" applicable in the Activity Area: cl 13.1(b).
·     For the particular Activity Area, there is an objective of ensuring sound environmental planning and management: cl 16.2(j).
·     To achieve that objective, the development "must minimise direct and indirect environmental risks or effects": cl 16.2(j).
·     The development "must satisfy" the provisions of Sch 8, as "relevant provisions contained within the schedules": cl 16.4.2.
·     Schedule 8 contains matters that "must be considered": cl 29.1.
· An objective of Sch 8 is to "ensure that activities are managed in a way which will not cause environmental nuisance, or material or serious environmental harm" as defined in the EMPC Act: cl 29.2.
·     Because (at least) a permissible Level 1 activity is involved, the objectives of cl 29.5 are relevant and "must be satisfied".
·     Accordingly, the environmental objectives in relation to Noise "must be satisfied": cl 29.5.
The status of cl 29.5 is a matter of statutory interpretation. That task begins with the ordinary grammatical meaning of the text to be interpreted having regard to its context. The words used in the text are the surest guide; context includes having regard to the general purpose and policy of the provision: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41, 239 CLR 27 at [4] and [47]. Statutory purpose resides in the statute's text and structure, and may appear by inference: Lacey v Attorney-General for Queensland (2011) 242 CLR 573 at 592 [44].
It is useful to compare the essential features of cl 16.2 and cl 29. Clause 16.2 applies the stated objectives and performance criteria to all use and development in the Sullivans Cove Activity Area. Clause 16.2(j) can be described as general in that sense. The objective in cl 16.2(j) might be described as "cursory"; a general statement of purpose without detail: L A Stein, Principles of Planning Law, (2008), at 45. That objective is to "ensure sound environmental planning and management". Those terms are not defined in the Scheme, nor in the EMPC Act, and it may be assumed the words have their ordinary meaning. Sultan suggests a definition of environmental planning as "a form of planning that seeks to integrate development of land and other natural resources for their economic and social benefits with the sustainable use of those resources and protection of environmental values".[1] Sultan also suggests it is useful to have regard to the definition of "best practice environmental management" contained in the EMPC Act.[2] The submission is that these definitions confirm the similarity in content between cl 16.2(j) and cl 29.5.
[1] Australian Legal Dictionary, LexisNexis, 2^nd ed.
[2] "4 Best practice environmental management
As to cl 16.2(j), the word "ensure" is usually given its ordinary meaning of "to make sure or certain" or "to warrant or guarantee": Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343, 67 NSWLR 402 at [65]–[66]; Wilton v Cole & Allied Operations Pty Ltd [2007] FCA 725, 161 FCR 300 at [145]. The objective is achieved by the performance criteria being met. According to the Scheme, those criteria are "general statements" of the means by which the objective may be met. The performance criterion in cl 16.2(j) relevantly requires the minimisation of direct and indirect risk or effects. None of the operative words is defined. Again, it can be assumed that they have their ordinary meaning.
The position under cl 16.2(j) can be contrasted with that of cl 29. By virtue of cl 16.4.2, cl 29 contains provisions that the development must satisfy". Clause 29.2 has as an objective, one of ensuring that activities are managed in a way which will not cause environmental nuisance or material or serious environmental harm. Although the objective is in general terms, it is a matter "which must be considered": cl 29(1). As I have noted, "environmental harm" is defined, and it is defined by reference to the EMPC Act. That definition extends to what is "material" and "serious" environmental harm. Oddly, cl 29 does not contain a definition of "environmental nuisance", but there is good reason to apply the concept embodied in the EMPC Act definition. Further, again as noted above, "best practice environmental management" is defined by reference to s 4 of the EMPC Act. It is a term that is found in the "Air Quality" and "Water Quality" provisions in cl 29.5.
Further, cl 29.5 states that its environmental objectives must be satisfied. The clause specifically relates to Permissible Level 1 and Level 2 activities, as defined by the EMPC Act. The "Noise" section in cl 29.5 has very particular application. It applies where activities with the potential to generate significant noise are proposed in proximity to residential accommodation and other noise sensitive activities.
The primary judge said that the environmental objectives set out in cl 29.5 were separate and distinct from the objectives and performance criteria of the Activity Area. By ground 1(a), Sultan challenges this and argues that cl 16.2(j) and cl 29.5 operate on the same subject matter, and in a complementary way. The Council submits that the reference in cl 29.3 to the controls applying to the "assessment" of permissible activities assists the argument. This is because cl 16.2 applies to use and development as such.
For the following reasons, this aspect of ground 1 also fails. In my view, although there is some overlap in operation, the two provisions are separate and distinct in their operation. That is almost self-evidently so, and simply arises from the structure of the Scheme. Clause 16.2 relates to use and development in the specific Activity Area. Because of cl 16.4.2, cl 29 applies to all development. It applies to all development that involves potentially harmful activities defined by specific reference to the EMPC Act. It applies to the whole of the planning area, and as the above analysis shows, in its context, it is much more focussed and precise in its application.
It is of some significance that of the six other Activity Areas, all six have the precise equivalents of cl 16.4.2. In contrast, three have the precise equivalents of cl 16.2(j), but three are different, and different from each other. As to the other three areas, for one, there are area objectives in the relevant clause, but none of those is an environmental objective, and there are no performance criteria: cl 15.2. (All use and development is to be in accordance with a local area plan.) For another, there is a differently worded objective, arguably broader than cl 16.2(j), but the performance criteria are identical: cl 18.2(d). For the third, there is yet another differently worded objective relating to the "physical environment" with completely different performance criteria: cl 19.2(d).
That tends to suggest an independent operation for cl 29. If it were intended that the various objective/performance criteria clauses along with the cl 29 provisions operate as a single standard, the Scheme could have much more clearly provided for such an approach. If the Scheme's environmental objectives are satisfied by reference to cl 16.2(j) and its exact or similar equivalents, there is no real need for cl 29. If anything further should be required as to this issue, I point out that the phrase "sound environmental planning and management" in cl 16.2(j) is not mentioned or alluded to in the statements of "Preferred Future for the Cove": cl 6 of the Scheme. Nor is it mentioned or alluded to in the section "Planning Principles for Management Activities": cl 7. On the other hand, the phrase "ecologically sustainable development" is used in the introduction in cl 29.1. The phrase is alluded to in cl 6.3, but in cl 7.3.3 it is specifically used under the principle "Natural Resource Values" where it is said to be an integral part of management of human activities within the Cove.
The next question to be decided is related to the previous one. It is raised by ground 3(a) and is whether the requirements of cl 29.5 are mandatory. It will be recalled that the primary judge said that if a so-called objective is a requirement that must be satisfied, then it is not an objective in the literal sense, but is a mandatory requirement. I should note that ultimately his Honour, although apparently in the context of Noise [1], said that cl 29.5 at least required the specified matters "to be taken into account in the making of a discretionary decision". (By ground 4(a), Sultan complains that the primary judge misconstrued cl 29 as providing for prerequisite requirements that must be met before a permit is granted. The primary judge did not use those words, and it seems Sultan suggests they are to be inferred from his Honour's reasons at [48]–[53]. However, this ground is more closely aligned with the asserted "two stage" error that I have already dealt with.)
Sultan relies on what it says is the distinction drawn in cl 3.3 between performance criteria, which Sultan says are qualitative in measures, and prescriptive development controls which it says are quantitative in nature. Sultan points to the scope of cl 29 as revealed in cl 29.3, that is, the clause applies to the assessment of certain activities. It submits that the cl 29.5 objectives are not expressed by reference to corresponding performance criteria, and contain no prescriptive controls, but focus on management. Sultan says a "key textual and contextual consideration is that cl 29 operates only on ss 57 and 58 applications [but] this is not to say that the objectives do not, in an appropriate case, provide a proper basis for the refusal of a discretionary application".
Fuglsang submits that as matter of principle, the terms of a scheme may be such that a provision which on its face is aspirational, is made a specific standard. It says the cl 29.5 objectives are made specific standards by the wording of the various provisions, and submits that general statements of principles and objectives in a planning scheme should not prevail over specific provisions: Von Witt v Hobart City Council (1995) 86 LGERA 134 at 139. Further, it says cl 29.5 has to be read in light of cl 29.2, so that when determining whether cl 29.5 is satisfied, regard must be had to the cl 29.2 objectives.
As guiding principles, the Scheme has to be viewed as a whole. Interpretations that promote internal consistency, and consistency within provisions should be preferred. Meaning and effect have to be given to all expressions and words. The intention behind the Scheme is to be derived from the language actually used. In my view, the present issue is resolved by reference to the ordinary meaning of the operative words in the relevant provisions.
It is very difficult to avoid the plain meaning of the imperative words in cls 16.4.2 and 29.5; respectively "must satisfy", and "must be satisfied". Achieving a state of satisfaction about a particular state of affairs is a vastly different thing from taking into account the issue generally. Although the cl 29.5 objectives are expressed as such, text and context can give such words a different meaning. As the primary judge observed, the word "guidelines" can be misused. The case his Honour referred to, Smoker v Pharmacy Restructuring Authority (1994) 125 ALR 577 demonstrates that so-called guidelines can be mandatory.
I do not see that the need for a judgment to be exercised in relation to the satisfaction of cl 29.5 objectives, and the absence of any precise quantification, is of any real consequence. I say this particularly in light of the imperative words used. Clause 3.3 does speak of prescriptive controls, being a "more rigid set of controls". This presumably means more rigid than performance criteria. But cl 3.3 does not confine those prescriptive controls to mere quantitative controls. The law is quite familiar with the notion of a specific criterion as a prequalification being dependent upon a state of satisfaction on the part of an administrative decision-maker. Additionally, the Tribunal took the view that the performance criteria in cl 16.2(j) must be complied with if the application was to be approved. Sultan does not argue with that proposition. The satisfaction of that performance criterion involves the making of a judgment.
I also accept the submission that cl 29.5 has to be read in conjunction with the cl 29.2 objective. In a sense, cl 29.2 provides objectives, while cl 29.5 contains a form of performance criteria. In any event, I do not think that to give the two sub-clauses quite separate operation is a sensible and harmonious construction of the Schedule as a whole. That means that when an assessment is being made of whether "appropriate measures to mitigate and minimise noise emission" are to be undertaken, the objective of not causing environmental nuisance, or material or serious environmental harm, has to be factored in. Of course, where the development is permitted, and the application is being considered under s 58, it is the imposition of conditions that will be the relevant exercise. In that sense, Sch 8 is a management tool, but it otherwise operates prescriptively in relation to discretionary development.
It follows that I hold that the approach of the Tribunal was erroneous. For the reasons I have given, grounds 1, 3 and 4 are not made out. The remaining questions are whether the erroneous approach of the Tribunal identified thus far amounts to a material error vitiating the decision (ground 5), and whether the approach of the Tribunal was erroneous on the wider view of ground 4 in the first instance appeal: ground 2 of this appeal.

The merits of the two approaches are discussed in Law of Costs at [8.7]-[8.8]. The "broad brush" or impressionistic approach is favoured. There have been expressions of caution about adopting the issue won/lost approach, which was of course, the approach of the primary judge in this case. In Sanders v Snell (No 2) (2000) 174 ALR 53, Kirby J at [15] said that it is not usual for the court to specify that costs will only be payable in respect of particular issues, "unless there are good and exceptional reasons in the particular case to do so." See also Firebird (above) at [6]. It has been observed that the approach may have general adverse effects in relation to the conduct of litigation, and may present significant difficulties for the taxing officer in quantification: see for instance Bowen v Alsanto Nominees Pty Ltd [2011] WASCA 39 at [6]-[7]; Cretazzo v Lombardi (1975) 13 SASR 4 at 16; Burnie Port Corporation Pty Ltd v Bank of Western Australia Ltd (No 3) [2003] TASSC 132, 12 Tas R 325 at [26].
As the primary judge noted in his reasons, the success of one or other of grounds 1 and 2 would have resulted in the Tribunal's decision being reversed, rather than the matter being remitted for redetermination. Those grounds related to an argument that the proposal amounted to the use of "General Industry", which was prohibited in the Activity Area. With the exception of one ground, success on any one of all of the other grounds would have led to an order for redetermination. The remaining ground was that relating to the application of the EMPC Act. Further, Fuglsang's submissions were marshalled so that grounds 1 and 2, ground 3, grounds 4 and 5, grounds 5A and 7, ground 6, and grounds 8, 9 and 11 were respectively dealt with under six separate headings in the written submissions.
An analysis of how things have now eventuated is as follows. Fuglsang failed before the primary judge in relation to grounds 1 and 2 and they were not raised in this Court. It has now succeeded in the cross appeal in relation to the discrete issue under the EMPC Act; ground 3. It succeeded on ground 4 and that remains the case. It has now succeeded on one ground of contention, and provisionally on a second, which were grounds that failed; grounds 5 and 7. Those grounds would have given rise to an order for redetermination. In relation to the issue of redetermination, it failed on ground 6 – raised as a matter of contention that failed in this Court, and it failed on four grounds before the primary judge that were not raised in this Court; 5A (irrationality), and 8, 9 and 11 (evidentiary issues).
I do not think that costs should follow the event, using that word in the sense of the ultimate outcome. In my view, there is sufficient reason to deal with costs on a different basis, and to take into account the issues won and lost as I have outlined them. I favour taking the 'broad brush' apportionment approach. I think the assessment should reflect that in relation to grounds 1 and 2, (success on which would have given rise to a reversal of the decision), Fuglsang is deprived of its costs and should pay the respondents' costs. The assessment should also reflect the fact that grounds 8, 9 and 11 were probably unreasonably pursued, leading to no allowance in Fuglsang's favour. I take into account the costs that would have been incurred in providing an overview of the proposal and the proceedings, and the time that would have been taken in analysing the Tribunal's reasons, the EMPC Act in relation to ground 3, and the Scheme in relation to ground 4. I would order that Sultan and the Council pay 50/% of Fuglsang's costs of the first instance appeal.

Outcome

I would make the following orders:
(a)The appeal is dismissed.
(b)The cross-appeal is allowed.
(c)The orders of the primary judge made on 17 January 2017 in appeal 1696/2015 be amended by including, after order no 2, the following:
"2ABefore any reconsideration by the differently constituted Tribunal, the application be referred to the Board of the Environment Protection Authority pursuant to s 25(1)(b) of the Environmental Management and Pollution Control Act 1994."
(d)The costs appeal is allowed.
(e)The costs orders made on 2 February 2017 be set aside except to the extent of the grant of an indemnity certificate under the Appeal Costs Fund Act 1968 to each respondent, and in lieu, it is ordered that the respondents pay 50% of the appellants' costs of appeal 1696/2015.

(1) For the purposes of this Act, the best practice environmental management of an activity is the management of the activity to achieve an ongoing minimization of the activity's environmental harm through cost-effective measures assessed against the current international and national standards applicable to the activity."