Tasmanian Heritage Council v Strada Group Pty Ltd - [2014] TASSC 48

[2014] TASSC 48

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmanian Heritage Council v Strada Group Pty Ltd [2014] TASSC 48

PARTIES:  TASMANIAN HERITAGE COUNCIL
  v
  STRADA GROUP PTY LTD

FILE NO: 1274/2013

JUDGMENT

APPEALED FROM: Strada Group Pty Ltd v Tasmanian Heritage Council

[2013] TASRMPAT 29B

DELIVERED ON:  29 August 2014
DELIVERED AT:  Hobart
HEARING DATE:  11 June 2014
JUDGMENT OF:  Tennent J

CATCHWORDS:

Environment and Planning – Courts and tribunals with environment jurisdiction – Tasmania – Resource Management and Planning Appeal Tribunal and its predecessors – Powers and duties on appeal – Power of tribunal to reconsider its decision – Challenge to correctness of part of decision relating to entry on Tasmanian Heritage Register in subsequent costs application in circumstances where no appeal against substantive decision.

Resource Management and Planning Appeals Tribunal Act 1993 (Tas), ss23(5) and (6), 25, 28.
Historic Cultural Heritage Act 1995 (Tas), ss16, 17, 18, 19, 21 and 27.
Purton v Jackson [2012] TASFC 2; Craig v South Australia (1995) 184 CLR 163, referred to.
Aust Dig Environment and Planning [596]

REPRESENTATION:

Counsel:
             Appellant:  P Turner
             Respondent:  A Spence
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Page Seager

Judgment Number: [2014] TASSC 48
Number of paragraphs: 33

Serial No 48/2014
File No 1274/2013

TASMANIAN HERITAGE COUNCIL v STRADA GROUP PTY LTD

REASONS FOR JUDGMENT TENNENT J

29 August 2014

Strada Group Pty Ltd ("the respondent") is the owner of premises at 91 - 97 Charles Street, Launceston, known as Henty House. By a letter dated 27 July 2011 addressed to the Launceston City Council, the Tasmanian Heritage Council ("the appellant") gave notice that, pursuant to the Historic Cultural Heritage Act 1995 ("the Act"), s21(1), it had permanently entered Henty House on the Tasmanian Heritage Register.
On 24 August 2011, the respondent appealed the decision of the appellant to the Resource Management and Planning Appeal Tribunal ("the Tribunal"). The sole ground of appeal was that Henty House did not satisfy any of the criteria upon which the entry in the register was based. The appeal was successful: Strada Group Pty Ltd v Tasmanian Heritage Council [2012] TASRMPAT 80 ("the merits based decision"). The decision in the appeal was published on 28 May 2012. An application by the respondent for costs followed. On 9 December 2013, a differently constituted tribunal ordered the appellant to pay the respondent's costs: Strada Group Pty Ltd v Tasmanian Heritage Council [2013] TASRMPAT 29B ("the costs decision").
This appeal, filed by the appellant on 23 December 2013, is in respect of that order for costs. There is no appeal against the merits based decision of the Tribunal.

Nature of appeal

The appeal is pursuant to the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"), s25. That provides a right of appeal on a question of law.

Grounds of appeal

"1The Tribunal erred in law in taking into account an irrelevant matter namely that it had determined a 'threshold jurisdictional issue' when, upon the proper construction of s27(3) of the Historic Cultural Heritage Act, there was no such issue to be determined by the Tribunal.
2The Tribunal erred in law in failing to properly construe s27(3) of the Historic Cultural Heritage Act in such a way that there was no threshold jurisdictional issue, as to whether the place (Henty House) had historic cultural heritage significance."

Relevant statutory framework in relation to heritage issue

The Act, s16, provides that the appellant may enter a place of historic cultural heritage significance in the Heritage Register if, in its opinion, the place meets one or more of the criteria identified in the section.
A "place" is relevantly defined to include:
(a) a site, precinct or parcel of land,
(b) a building or part of a building,
(c)any item in or on or historically or physically associated or connected with a site, precinct or parcel of land where the primary importance of the item derives in part from its association with that site precinct or parcel of land, and
(d)any equipment, furniture, fittings and articles in or on or historically or physically associated or connected with any building or item.
The phrase "historic cultural heritage significance" in relation to a place is defined to mean significance to any group or community in relation to the archaeological, architectural, cultural, historical, scientific, social or technical value of the place.
The Act, s17, provides that the appellant may decide to enter a place on the register on a provisional basis if in its opinion the place meets any one or more of the required criteria. The term "required criteria" is also defined to mean the criteria specified in the Act, s16. Section 18 deals with the procedure relating to provisional entry. Section 19 relates to objection which may be taken to the appellant's intention to enter a place on the register. Such an objection may only be made on the basis that the place does not satisfy any required criteria on which the entry is based. Section 21 then provides for the permanent entry.
The Act, s27, provides for appeals against decisions of the appellant to enter a place on the register on a permanent basis. Such an appeal may only be made on the basis that the place does not satisfy any of the required criteria on which the entry is based. Any such appeal is to the Tribunal and is governed by the provisions of the RMPAT Act. The relevant hearing before the Tribunal is a hearing de novo.

Background

When a place is entered permanently on the register, a data sheet is prepared. That data sheet records that it is intended to provide sufficient information and justification for listing a place on the register. The data sheet in the present case at 7 and 8 contained the following information:

"ASSESSED HISTORIC CULURAL [sic] HERITAGE SIGNIFICANCE

Statement of Significance: (non-statutory summary)

Henty House is significant as a rare landmark example of the Brutalist architecture style within Tasmania, particular as a large and prominently-sited public building. Henty House is significant as the centre of state government services in Launceston, and makes a notable contribution to the Launceston's townscape. Henty House is of historical significance for the role its design process played in the planning of Launceston's Civic Square – particularly in respect of how the design was changed in response to community concern for Macquarie House, demonstrating increasing community interest and participation in heritage issues the north of the state, and in the architectural history of the brutalist style within the state inclusive of the community attitudes toward this style. Through its design it has a direct association with Peter Partridge, one of Tasmania's significant post-war twentieth century architects and to a lesser extent nationally acclaimed architect Enrico Taglietti, and through its artwork it has an association with Rynne Tanton, renowned ceramist. Henty House also houses one of the first examples of public funded art.

The Heritage Council may enter a place in the Heritage Register if it meets one or more of the following criteria from the Historic Cultural Heritage Act 1995:

a)

'It is important in demonstrating the evolution or pattern of Tasmania's history'

Henty House demonstrates the evolution of public administration in Tasmania, specifically relating to the philosophy of consolidating and centralising government service delivery within northern Tasmania. The construction of Henty House was an integral issue in the creation and master planning of Launceston's Civic Square, a major redevelopment project within the State. The design reflects planning changes that were made at the request of the community to preserve Macquarie House, demonstrating increasing community interest and participation in heritage issues in northern Tasmania.

b)

'It demonstrates rare, uncommon or endangered aspects of Tasmania's heritage'

Henty House is a rare example of a Brutalist, concrete, civic building in Tasmania. Brutalist architecture is rare in Australia and is usually confined to the period of 1950-1960s whereas Henty House is a particularly late and unusual example from the 1980s.

c)

'It has potential to yield information that will contribute to an understanding of Tasmania's history'

d)

'It is important as a representative in demonstrating the characteristics of a broader class of cultural places'

Henty House is significant as a landmark example of the Brutalist architecture style within Tasmania, particular as a large and prominently-sited public building. It demonstrates a range of interesting architectural features, many of which are key characteristics of the Brutalist style including distinctive pyramidal lines and typical attributes for the style including: strong shape, bold use of unpainted, highly textured off-form concrete, heavily sculptured underside of second floor slab expressing structural form. It also demonstrates the use of stainless steel railings to stairs and balconies, and contrasting diagonal and vertical elements. The original exterior is intact with only minor security modifications.

e)

'It is important in demonstrating a high degree of creative or technical achievement'

Henty House is important in its use of off-form concrete as a technical achievement in the innovative use of material achieving a bold sculptural shape.

f)

'It has strong or special meaning for any group or community because of social, cultural or spiritual associations'

g)

'It has a special association with the life or work of a person, a group or an organisation that was important in Tasmania's history'

Henty House has special associations with three significant post war architects and artists, including English-born architect Peter Partridge, nationally acclaimed Italian-born architect Enrico Taglietti, and English-born ceramist and potter, Rynne Tanton. Henty House has special associations with the nationally prominent Henty family for whom it was named."

The data sheet obviously deals with both the s16 criteria and the issue of whether a place has historic cultural heritage significance.

Tribunal determination – merits based decision

The Tribunal determined that the appellant was required to undertake a two stage process before it could enter a place on the register. Firstly, it had to determine whether or not a place had historic cultural heritage significance. If it determined that it did, it could then proceed to consider the criteria in s16. The Tribunal described that first step as a jurisdictional fact or a pre-condition to the exercise by the appellant of its jurisdiction. In the event that a place did not have historic cultural heritage significance, the appellant had no power to exercise. The Tribunal formed the view that Henty House had no such significance.
The Tribunal, however, starting at [32] went on to consider the s16 criteria in the event that it was wrong "as to its conclusion about the so-called jurisdictional fact". The Tribunal noted that the appellant had relied on criteria (a), (b), (d), (e) and (g) in s16 to underpin its decision to make the entry on the register. The Tribunal noted at the outset that while the appellant did not rely on criteria (c) or (f), it would be open to it to consider those were there evidence to support them. It concluded however there was none.
The Tribunal heard a great deal of evidence and dealt in detail with each of the criteria on which the appellant relied. The Tribunal then said at [67]:
"The appeal succeeds in the sense that the Tribunal is not satisfied that an essential pre-condition to the exercise of its jurisdiction namely that Henty House has historical cultural heritage significance. In the alternative, the Tribunal is satisfied that Henty House does not satisfy any of the criteria upon which the entry is based in which case the decision of the Appeal Tribunal is to set aside the decision of the Heritage Council to enter Henty House, 91-97 Charles Street, Launceston in the Tasmanian Heritage Register. "
At [68], the Tribunal then said:
"The Tribunal will entertain any application for an order for costs in this appeal, if made to the Tribunal in writing with supporting submissions within the next fourteen days. If requested the Tribunal will reconvene to hear any evidence in respect of any matter bearing on an order for costs."
The appellant has filed no appeal against the merits based decision of the Tribunal.

The costs decision

On 8 June 2012, the respondent's solicitors wrote to the Tribunal seeking an order for costs. On 27 June the appellant's solicitors raised a preliminary point, which was that the Tribunal had no jurisdiction to award costs because it had found it had no jurisdiction to consider s16 criteria, absent satisfaction of a pre-condition. There followed lengthy written submissions by both parties over the next two and a half months about that issue and the issue of costs generally. The costs decision was eventually published on 9 December 2013. The decision was one by the chairman of the Tribunal alone, a chairman different from that who was responsible for the merits based decision because by that point the former chairman had left the Tribunal.
The costs decision did not address the preliminary point raised by the appellant and the fact that it did not has not been raised as a ground of appeal. Instead, the Tribunal addressed the criteria in the RMPAT Act, s28, which deals with costs. That section relevantly provides:
"28. Costs
(1)     Each party to an appeal is to pay its own costs.
(2)     However, the Appeal Tribunal may order a party to proceedings to pay all or part of the costs of another party to the proceedings if the Appeal Tribunal is satisfied that it is fair and reasonable to do so.
(3)     For the purposes of subsection (2), the Appeal Tribunal may take into account any of the following matters:
(a)     whether the proceedings appear to the Appeal Tribunal to have been instituted merely to delay or obstruct;
(b)      whether in the Appeal Tribunal's opinion a party has raised frivolous or vexatious issues;
(c)     the relative merits of the claims made by each of the parties;
(d)     whether in the Appeal Tribunal's opinion a party has unnecessarily or unreasonably prolonged the proceedings or increased the costs of them;
(e)     whether a party has failed to comply with a direction or order of the Appeal Tribunal without reasonable excuse;
(f)     whether a party has failed to comply with any relevant law or planning scheme;
(g)      the nature, complexity and outcome of the proceedings;
(h)      the capacity of the parties to meet an order for costs;
(i)     any other matter the Appeal Tribunal considers relevant.
…"
In its costs decision, the Tribunal summarised the respondent's contentions as to costs and set out the history of the matter. At [5] – [7], the Tribunal dealt with some of the respondent's contentions. At [8] and [9], the Tribunal outlined the submissions by the respondent made by reference to s28(3)(b) and (c). Then at [11] – [15], the Tribunal said, in part quoting material from the merits based decision:
"11It is convenient to deal with the considerations articulated by the Appellants under 28(3)(b) and (c) together. Whilst the characterisation of the case as frivolous does not in the Tribunal's view constitute the appropriate characterisation, the substantive arguments submitted under that category and also those asserted under Section 28(3)(c), constitutes a submission which accurately summarises the facts in this case. The submissions should succeed. It is not controversial to submit that the Heritage Council is required to apply the statutory tests and to do so objectively. It is trite. Nor does it follow that costs should be awarded to a successful appellant, simply because the Heritage Council reached a different conclusion from that urged by the Appellant, or its experts. But it is significant and relevant in this case, that in its decision the Tribunal so unequivocally disagreed with the contentions advanced by the Heritage Council as to strike them down at the threshold. The Tribunal held that that there was a threshold jurisdictional issue required to be determined before a consideration of the six criteria articulated in Section 16. It said this: 'In the Tribunal's view the characteristic of historical cultural heritage significance is such a jurisdictional fact. Unless that state of affairs existed the Heritage Council had no power to exercise in the context of this case. And it is the Tribunal's view, emphatically, that Henty House has no historic cultural heritage significance at all. Thus it follows that an essential precondition to the Tribunal exercising its jurisdiction does not exist.' (The Tribunal's jurisdiction was it de novo jurisdiction to determine whether the place should be listed)
12And the Tribunal went on, further discrediting the Heritage Council's approach to this critical preliminary issue, at 27:
'27 The Tribunal has reached this view about Henty House's lack of significance for several reasons. First, no group or community is identified in any of the material to which it could be said to have significance. The only potential group or community that was postulated is the Launceston City Council. The Council's view as the elected representative of the Launceston community about Henty House is unequivocal. It opposed in quite clear terms any suggestion that the building should be entered permanently in the Register. Relevantly no other group or community seems to exist. The suggestion that the building is significant beyond Launceston does not seem to have formed any part of the Heritage Council's basis and is certainly not open on the basis of the voluminous material that was before the Tribunal. At its highest it seems that any group consists of a handful of unidentified aficionados of mid to late 20^th Century Tasmanian architecture. In the Tribunal's view this could not, on any view of it, be accepted either as a "community" or a group in the context of the legislation.
28Second, Henty House also lacks value in archaeological, scientific, social and technical terms. Nobody suggested that this was not so. It also lacks any meaningful historic significance. History, whilst not defined in the Act, is defined in the Macquarie Dictionary as:
"The branch of knowledge dealing with past events; the record of past events, especially in connection with humankind [sic]; a continuous systemic narrative, in order of time of past events relating to a particular people, country, period, person, etc.; the aggregate of past events; a past worthy of record or out of the ordinary; a systemic account of any set of natural phenomena, without reference to time; a drama representing historical events".
[emphasis added in original decision]
29In the Tribunal's view there is nothing about Henty House which would allow of a conclusion that it has an historical significance. It says nothing about past events, nothing about a continuous systemic narrative and nothing about a particular people, country period or people. Most importantly there was no material which is capable that Henty House has anything to do with a "past worthy of record or out of the ordinary". Indeed all of the evidence about the palace bespoke banality.
30In summary Henty House simply does not demonstrate in any way that it has any significance to any group or community in relation to the archaeological, architectural, cultural, historical, scientific, social or technical value of the place". To a large extent why that is so is expanded upon later in these reasons in the discussion of the various Section 16 factors – and even though that involves different considerations the material about the place's importance and significance (or lack thereof) in that context serves to illuminate this basic point.
31The Tribunal's view is that a fundamental precondition to entry, or put another way, the plain jurisdictional fact contained in Section 27 is not established in the circumstances of this case.'
13It is difficult to imagine a more damming critique of the Heritage Council's approach to its primary task. Whilst there is an element of hindsight judgment brought to bear in this decision upon the quality of the argument advanced by the Heritage Council in support for the listing of the place, that fact does not derogate from the force of the conclusion. The Tribunal explicitly exposes the deficiencies in the Heritage Council case, and exposes not just the futility of its persistence in seeking to have the place listed, but an approach which supports only one conclusion: that there was a blinkered persistence in the attainment of that end. It is not as if the Heritage Council was deprived of argument to the contrary or precluded from exploring those other views or considering them.
14In the Tribunal's view, whether or not such determination, and persistence therein, amounts to an approach attracting the label appearing in Section 28(3)(b) – frivolous, or not, it certainly attracts the principle articulated at Section 28(3)(c) of the Act. Not only was the Heritage Council's position utterly without merit, the Appellant's case was not, and was supported by expert evidence in support of its case. It possessed merit, and in relative terms the positions of the parties were in stark contrast.
15In the Tribunal's view it was the Heritage Council's persistence in upholding its own internal view that put it on the wrong course. It disguised the issues required to be determined under the Act, and inhibited the Heritage Council's fulsome consideration of the Appellant's argument. Because it did not properly assess those materials and failed to appreciate the merit of the Appellant's case, it caused the Appellant to incur considerable costs. In the Tribunal's view, but for that persistence, considerable costs could have been avoided. A mature consideration of the evidence would have produced a decision to abandon the listing of the place. As a result the Tribunal is satisfied that it should bear responsibility for some of the Appellant's costs.
16Those conclusions are relevant to the Section 28(3)(g) criterion as well. Whilst the Tribunal accepts the Respondent's submission that the nature of the appeal was complicated in terms of the statutory provisions by which the appeal arose and fell to be determined, and was complex because of issues associated with the admissibility of evidence about which there were multiple exchanges between the parties and technical discussions about architectural style, the Tribunal is satisfied that the Heritage Council functioning with rigour and scrupulously applying the Act, would not have allowed the matter to proceed to the point of hearing. This is not to say that the result of this application follows the event. It is to say that the event is the product of the Heritage Council's persistence in a case which was flawed, which was shown to be flawed by expert evidence provided to it, all of which was ignored in favour of allowing the matter to proceed to a formal arbitration before the Tribunal. Whilst the Act contemplates a process of appeal to the Tribunal, it is incumbent upon the decision-maker to critique its own case. This is particularly important for the institutions charged with implementing legislation. They are resourced by capable and experienced experts, and familiar with the law to be applied. Rigorous process gives legitimacy to the results of its activities, and ensures respect for it, and its lists, thereby advancing the primary cause of protecting the State's heritage assets.
17A point is made by the Appellant that Mr Scott misrepresented the evidence of certain witnesses. At the outset it is to be noted that notwithstanding such conduct, assuming it to have occurred, the Tribunal was not affected by it. Perhaps the submission is intended to expose something of the way in which the Heritage Council approached its case. It is important to remember in these cases that there is not a jury. Whilst a jury may be susceptible to being misled by the misrepresentation of argument by a party, an expert Tribunal is not generally speaking so susceptible. The Tribunal has considered the submission, examined the record of the proceedings, and looked at the decision of the Tribunal. It is satisfied that the Tribunal was not misled by anything in the submissions presented by Mr Scott, and it is satisfied that Mr Scott did not set out to deliberately mislead it. On the contrary the Tribunal is satisfied that both Mr Scott and Mr Johnson though enthusiastic about a particular result, attempted to assist the Tribunal in the evidence they gave.
18Reference is also made by the Appellant to the guidelines prepared by Mr Scott. Inevitably, statutory obligations will be reduced to a summary form or explained through the adoption of a more convenient form of words, when it comes to their application on a day-to-day basis. There is nothing wrong with that provided that the summary form of words does not omit an important or relevant matter or embellish the statute. In this case it the Heritage Council appears to have allowed itself to be misled, though perhaps not so much in its understanding of the law and the terms of the Act, as in the actual merits assessment of the case. As an example, the Tribunal at paragraph 16 and 17 refers to what was described as the 40-year principle. At 17 the Tribunal said:
'Even if there is a 40-year principle (which was something of a revelation to the Tribunal) it is not mentioned in the Act and has nothing to do whatsoever with the statutory test the Tribunal is required to apply. It is irrelevant and any view expressed about it totally unhelpful.'
… ".

At [11] is the material which underpins this appeal. It is a quote taken from [26] (which appears at 19 of the decision) of the merits based decision. That was the Tribunal's conclusion to the effect that there was a pre-condition to the appellant being able to consider s16 criteria, and that was that it first had to be satisfied a place had historic cultural heritage significance.

Discussion

The appellant's arguments on this appeal are by reference to the Act, s27(3). That section limits the matters in respect of which a person may appeal a decision of the appellant to enter a place permanently on the register to the Tribunal. Such an appeal is limited to "the basis that the place does not satisfy any of the required criteria on which the entry is based". "Required criteria" is defined to mean the criteria in the Act, s16. The appeal made by the respondent to the Tribunal was on the basis referred to in s27(3). Counsel for the appellant submitted that whether or not a place had historic cultural heritage significance was not a required criterion. For a person to succeed in an appeal by reference to s27(3), they must satisfy the Tribunal that none of the required criteria have been met. A person appealing cannot challenge before the Tribunal the determination by the appellant that a place has historical cultural heritage significance.
The appellant argues that the only issue therefore that the Tribunal could consider in the merits based decision was whether Henty House satisfied the criteria on which it had said it based the entry. Those criteria were those set out in the data sheet which is extracted at [10] in this decision. Insofar as the Tribunal considered any other issue, for example, the threshold jurisdictional issue, it should not have. It followed that, if the Tribunal used as a basis for its decision as to costs its conclusion as to a threshold jurisdictional issue, then it was considering a matter which it should not have and which was irrelevant.
Counsel for the appellant submitted that the law demanded that the Tribunal determining the costs issue ignore the determination made by the Tribunal constituted first in time to the effect that a threshold jurisdictional fact had to be determined, because the Tribunal had, in making that determination, made an error of law. In having regard to that determination and adopting it, the Tribunal as it was constituted for the costs issue also made an error of law. Counsel for the appellant referred to remarks by their Honours Brennan, Deane, Toohey, Gaurdon and McHugh JJ in Craig v South Australia (1995) 184 CLR 163 at 179 where their Honours, dealing with the topic of jurisdictional error, said:
"At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd (22):
'Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.'
The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error."
The High Court in Craig's case was dealing with a step taken by an intermediate court to stay proceedings and the court had occasion to examine what amounted to jurisdictional error at different levels. If, by reference to Craig's case, counsel for the appellant's argument about the threshold issue was correct, then one would have to ask rhetorically, why did it not appeal the merits based decision? It appears it took a pragmatic approach in not doing so, accepting that, whether or not the Tribunal was wrong about the jurisdictional fact issue was immaterial because the decision about the s16 criteria was right. However the appellant submits that approach does not preclude it from raising the issue on this appeal. The Tribunal made a decision otherwise than in accordance with the law. The appellant does not suggest that invalidates the merits based decision of the Tribunal, simply that anything relating to the issue decided contrary to law should have been ignored for the purpose of the costs decision.
The difficulty with the approach taken by counsel for the appellant is that, for it to succeed, this Court would be required to determine whether the merits based decision, insofar as it related to the issue of whether there was a pre-condition to the appellant's jurisdiction, was correct or not. The appellant's appeal can only succeed if that determination by the Tribunal in May 2012 was wrong.
Counsel for the respondent argues that this Court has no power to review a decision of the Tribunal absent an appeal against that decision on a question of law. Further, a Tribunal has no power to revisit an earlier decision in the same matter. That is the Tribunal when it dealt with the issue of costs had no power to decide the substantive matter again (and by implication from the argument of counsel for the appellant change its decision), and was required to accept the merits based decision and make its costs order by reference to that. Otherwise the initial hearing as to merits and an appeal process would be rendered nugatory.
In Purton v Jackson [2012] TASFC 2, their Honours had to consider this very issue, albeit in a somewhat different context. The Tribunal in that case made a decision it had no jurisdiction to deal with an appeal to it. After a number of other disputes elsewhere between the parties, one party wrote to the Tribunal asking it to proceed to deal with the appeal. The Tribunal determined on that occasion it did have power to deal with the appeal. That decision was appealed to this Court. Wood J determined that the Tribunal had no power to proceed to hear and determine the appeal and set aside the Tribunal's decision to the effect it did so: Jackson v Purton [2011] TASSC 28. The respondent in that matter appealed to the Full Court. Both the Full Court and Wood J considered the provisions of the RMPAT Act insofar as they related to the review of Tribunal decisions. Blow J (as he then was) said at [22] that there was nothing in the RMPAT Act which expressly prohibited the Tribunal from varying or reversing its decisions. He went on to point out that s23(5) and (6) however expressly conferred limited powers of correction and amendment. He then set out those provisions, and considered them and relevant provisions of the Land Use Planning and Approvals Act 1993.
His Honour ultimately concluded at [29]:
"29 In my view the nature of the tribunal's work and the scheme of the relevant legislation compel a conclusion that the tribunal's only powers to change a decision disposing of an appeal – even one disposing of an appeal on the basis that it had no jurisdiction – are those conferred by s23(5) and (6). Those subsections should be regarded as covering the field in relation to the changing of any final decision disposing of an appeal or, to use the words of s23(6), a 'decision on an appeal'. Such an interpretation promotes the purposes and objects of the RMPAT Act, whereas a contrary interpretation would not: Acts Interpretation Act, s8A(1). It would be contrary to the scheme of the relevant legislation for the tribunal to have any other power to reconsider, vary or reverse such a decision. In this regard I see no reason to treat a decision that the tribunal lacks jurisdiction any differently from a decision under s23(2) affirming, varying or setting aside a decision that has been appealed against. It follows that the tribunal had no power to make its second decision, and that the learned primary judge was correct to take that view. "
The Court in Purton v Jackson was dealing with an appeal to the Tribunal under the Land Use Planning and Approvals Act. The present case is obviously dealing with an appeal to the Tribunal under the Act. However, I am not persuaded that the considerations which underpinned the decision of Blow J in Purton v Jackson are not equally relevant to an appeal arising by reference to the Act.
The appellant did not appeal the merits based decision. The decision to do so may very well have been a pragmatic one. However, the fact remains it did not do so. Absent such an appeal or the application of the provisions of the RMPAT Act, s23, the Tribunal, when dealing with the issue of costs, had no power to revisit the merits of its earlier decision. There is no suggestion that any part of s23 has application in the present case.
The appellant's appeal is underpinned solely by an argument that the Tribunal, in its merits based decision, was wrong in making a determination that there was a pre-condition to any consideration of s16 criteria that it first needed to be satisfied a place had historic cultural heritage significance. The argument is that the Tribunal had no power to make that determination having regard to the limitations imposed on an appellant by reference to s27(3), and therefore the Tribunal constituted for the costs decision had to ignore it. In failing to do so, it made an error of law. For that argument to succeed, this Court would need to be satisfied that the Tribunal constituted for the costs decision had the power, absent an appeal against the merits based decision, to reconsider that decision and independently determine whether it was right or not. Were this Court to be satisfied that the Tribunal had such a power, it would then need to consider, again absent any appeal, whether that merits based decision was correct. If it was correct, the Tribunal dealing with costs would not have been dealing with an irrelevant issue. There is no other challenge to any aspect of the costs decision.
I am not satisfied that the Tribunal constituted for the purpose of the costs issue had power, absent an appeal against the merits based decision, to review the correctness or otherwise of the merits based decision. It was in my view entitled to consider the issue of costs by reference to the merits based decision and the extensive submissions made by both parties in relation to costs. It was not required to firstly determine if that decision was correct, and, if it determined it was not, substitute its own decision before proceeding to the issue of costs. In those circumstances, it cannot be said that it considered an irrelevant matter or that it failed to construe s27(3) as asserted in grounds 1 and 2 of the notice of appeal. It was not obliged to consider s27(3) because the merits based decision had already been made and was unchallenged.
The appeal should be dismissed.

b)	*'It demonstrates rare, uncommon or endangered aspects of Tasmania's heritage'*
Henty House is a rare example of a Brutalist, concrete, civic building in Tasmania. Brutalist architecture is rare in Australia and is usually confined to the period of 1950-1960s whereas Henty House is a particularly late and unusual example from the 1980s.

e)	*'It is important in demonstrating a high degree of creative or technical achievement'*
Henty House is important in its use of off-form concrete as a technical achievement in the innovative use of material achieving a bold sculptural shape.

g)	*'It has a special association with the life or work of a person, a group or an organisation that was important in Tasmania's history'*
Henty House has special associations with three significant post war architects and artists, including English-born architect Peter Partridge, nationally acclaimed Italian-born architect Enrico Taglietti, and English-born ceramist and potter, Rynne Tanton. Henty House has special associations with the nationally prominent Henty family for whom it was named."