Tasmanian Water and Sewerage Corporation Pty Ltd v Bass Corporation Pty Ltd
[2017] TASSC 79
•21 December 2017
[2017] TASSC 79
COURT: SUPREME COURT OF TASMANIA
CITATION: Tasmanian Water & Sewerage Corporation Pty Ltd v Bass Corporation Pty Ltd [2017] TASSC 79
PARTIES: TASMANIAN WATER & SEWERAGE CORPORATION PTY LTD
v
BASS CORPORATION PTY LTD
WEST TAMAR COUNCIL
FILE NO: 123/2017
DECISION
APPEALED FROM: Bass Corporation v West Tamar Council and TasWater [2016] TASRMPAT 39
DELIVERED ON: 21 December 2017
DELIVERED AT: Hobart
HEARING DATE: 11 December 2017
JUDGMENT OF: Blow CJ
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 – Duty to give reasons for determination of appeal – Decision in an appeal before final determination – Duty to observe rules of natural justice – Whether decision on a basis not contemplated by parties.
Resource Management and Planning Appeal Tribunal Act 1993 (Tas), ss 16(1)(d), 24(1), 25(1).
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, distinguished.
Public Service Board (NSW) v Osmond (1986) 159 CLR 656, referred to.
Aust Dig Environment and Planning [595]
REPRESENTATION:
Counsel:
Applicant: A Spence
Respondents: No Appearance
Solicitors:
Applicant: Page Seager
First Respondent: Shaun McElwaine + Associates
Second Respondent: Dobson Mitchell Allport
Judgment Number: [2017] TASSC 79
Number of paragraphs: 67
Serial No 79/2017
File No 123/2017
TASMANIAN WATER & SEWERAGE CORPORATION PTY LTD
v BASS CORPORATION PTY LTD and WEST TAMAR COUNCIL
REASONS FOR JUDGMENT BLOW CJ
21 December 2017
Sewers are built to carry sewage, but that is not all that they carry. Small quantities of groundwater seep into them, and, in wet weather, substantial quantities of stormwater find their way into them. Engineers therefore need to design sewers that will be sufficient when peak flows occur. This is a case about the estimation of the "Wet Weather Peak Flow" of a sewer in the Launceston suburb of Riverside.
A company named Bass Corporation Pty Ltd wants to develop a residential subdivision in the catchment area of the sewer in question. The planning authority for the area is the West Tamar Council. In 2012 Bass applied to the council for a permit for the subdivision pursuant to s 57 of the Land Use Planning and Approvals Act 1993 ("the LUPA Act"). It was clear that the granting of the permit and the development of the subdivision would result in an increase in the amount of sewage being discharged into the sewer in question. Sewerage in Tasmania is the responsibility of Tasmanian Water & Sewerage Corporation Pty Ltd, which is known as "TasWater". That company was incorporated in accordance with the Water and Sewerage Corporation Act 2012 ("the WSC Act").
Section 56O(1)(b) of the Water and Sewerage Industry Act 2008 ("the WSI Act") required the council to give notice to TasWater of any application "in relation to any matter that would … increase the amount of sewage … that is to be removed by, or discharged into, the relevant regulated entity's [TasWater's] sewerage infrastructure". It notified TasWater of the application. TasWater required the council, if it granted the desired permit, to include a permit condition requiring two sections of the sewer to be upgraded. That condition apparently specified that the diameter of the sewer pipeline was to be upgraded from 150mm to 225mm for 390 metres, and from 225mm to 300mm for 63 metres. The council was obliged by s 56Q(2)(a) of the WSI Act to include the condition that TasWater required. On 4 August 2016 a delegate of the council approved the permit application and issued a s 57 permit. The permit included the condition required by TasWater.
Bass appealed to the Resource Management and Planning Appeal Tribunal ("the Tribunal") challenging only the permit condition relating to the upgrade of the sewer. The appeal was heard by the Tribunal on 29 November 2016. The Tribunal was constituted by its then Chairman, Mr G Geason (now a judge of this Court), and Mr R Locke. By the time of the hearing, TasWater was willing for the upgrading from 150mm to 225mm to apply only to 147.3 metres of the sewer, and for the upgrading from 225mm to 300mm to apply only to 31.8 metres of the sewer. In accordance with its established policy, it contended that the developer, Bass, should pay the full cost of the upgrade. Bass contended that that was unfair because the sewer also served properties outside the area of its proposed subdivision. It also contended that TasWater had substantially overestimated the necessary carrying capacity of the sewer.
On 21 December 2016 the Tribunal delivered a decision rejecting the first of those contentions but upholding the second: Bass Corporation v West Tamar Council and TasWater [2016] TASRMPAT 39. This is an appeal from that decision. It was not a final decision. The Tribunal concluded that, for the purpose of determining what work was required to be undertaken at the expense of Bass, an inflow of 5 litres per second from the development was to be "used". It required TasWater to undertake revised calculations on that basis within 60 days, with a view to the Tribunal thereafter settling the terms of the revised permit condition. It appears that the Tribunal did not proceed to finalise the matter after this appeal was instituted. That is to say, there has not been a final determination of the appeal.
However this is a competent appeal because of the wording of s 25(1) of the Resource Management and Planning Appeal Tribunal Act 1993 ("the RMPAT Act"). That subsection permits appeals not just from final decisions, but from "any decision … in the appeal." The same subsection limits the right of appeal to questions of law. It reads as follows:
"(1) A party to an appeal before the Appeal Tribunal may appeal to the Supreme Court, on a question of law, from any decision of the Appeal Tribunal in the appeal."
Neither Bass nor the council was represented at the hearing of this appeal. Both indicated that they would submit to any order made by the Court, except as to costs. At the hearing, submissions were made to me only by counsel for TasWater.
The wrong planning scheme (Ground 1)
When Bass applied for a s 57 permit in 2012, the West Tamar Planning Scheme 2006 was in force. On 16 October 2013, that planning scheme was superseded by the West Tamar Interim Planning Scheme 2013. The documents that were before the Tribunal reveal that, when the council's delegate decided to grant the s 57 permit in August 2016, she assessed the permit application on the basis that the 2013 scheme was the applicable scheme. Similarly, when the Tribunal made the decision now under appeal, it proceeded on the basis that the 2013 scheme was the applicable scheme. It thereby erred in law.
In 2012 the LUPA Act was amended by the Land Use Planning and Approvals Amendment Act (No 2) 2012. That amending Act introduced s 30FA. That section included the following provisions:
"(2) On and from the day on which an interim planning scheme comes into operation, subsection (3) applies to, and in relation to, an application, for a permit in relation to land to which the scheme relates, that —
(a) is, before that day, made in accordance with this Act, valid under section 86 and a valid application within the meaning of section 51(1AC); and
(b) is not an application to which a request under section 43A relates; and
(c) is not determined by the planning authority before that day; and
(d) is not an application in relation to which, before that day, a decision to grant a permit is deemed under section 59(1) to have been made.
(3) Despite any other provision of this Act or an interim planning scheme, on and from the day on which an interim planning scheme comes into operation in relation to land to which an application, to which this subsection applies, relates —
(a) a planning scheme, or special planning order, as in force in relation to the land immediately before that day (the former scheme or former order), continues to apply in relation to the application; and
(b) any decision of the planning authority in relation to the application is to be made in accordance with the provisions of the former scheme or former order; and
(c) this Act applies in relation to the application; and
(d) the Appeal Tribunal must determine any appeal in relation to the application or a permit granted, or not granted, in relation to the application —
as if the former scheme or former order continued in operation, and the interim planning scheme did not apply, in relation to the land."
That section was repealed, with effect from 17 December 2015, by the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015. However its operation continued in force in respect of pending permit applications and appeals by virtue of two provisions in the LUPA Act, s 87C and Sch 6, cl 3(2)(b).
Section 30FA(2)(a) was satisfied because the permit application was made before the interim planning scheme came into operation. Paragraphs (b), (c) and (d) of s 30FA(2) were not applicable. Therefore, by virtue of s 30FA(3), the 2006 scheme continued to apply in relation to the permit application, had to be applied by the council in the making of its decision on the application, and had to be applied by the Tribunal in determining the appeal.
When the permit application was being considered by the council, no members of the public made representations relating to it. The only representation came from TasWater. The land in question was zoned residential under the 2006 scheme. The council had the power under the 2006 scheme to grant a s 57 permit, just as it did under the 2013 interim planning scheme. It was not argued before the Tribunal that the 2006 scheme applied. The only issues before the Tribunal concerned the condition relating to the upgrading of the sewer. Nevertheless, counsel for TasWater submitted to me that the Tribunal's error as to what planning scheme was applicable was a jurisdictional error that vitiated the Tribunal's decision and could only result in this appeal being allowed. It is not as simple as that.
I am not satisfied that the Tribunal's error as to the applicable planning scheme was a jurisdictional error at all. It made no difference to the question the Tribunal had to decide, which concerned only the scope of the requirements as to the upgrading of the sewer that should be imposed on the developer. The Tribunal could have decided the matters in issue in the proceedings before it without mentioning which planning scheme was in force.
If I am wrong in concluding that there was no jurisdictional error, it does not follow that the appeal should succeed. Where there is jurisdictional error, the legal consequences of a decision depend on the relevant legislation: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597; Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288, 145 FCR 1 at [42]; Purton v Jackson [2012] TASFC 2, 21 Tas R 310 at [11]. Having regard to the consequences that would follow if a permit for the development of a residential subdivision were regarded as a nullity, I think it would be inconsistent with the legislative scheme to regard a jurisdictional error as producing that result. One of the objectives of the resource management and planning system of Tasmania is "to provide for the fair, orderly and sustainable use and development of air, land and water": the LUPA Act, Sch 1, Pt 1, cl 1(b). If s 57 permits could sometimes be treated as nullities as a result of jurisdictional errors, the results would sometimes be neither fair nor orderly.
The existence of rights of appeal is also significant. As this case illustrates, there is a right of appeal to the Tribunal from a council's decision on a s 57 application: the LUPA Act, s 61. Then there is the right of appeal from decisions of the Tribunal to this Court under s 25 of the RMPAT Act. It is significant that, under s 25(5) and (6), this Court has a wide discretion as to the disposition of such an appeal. Those subsections read as follows:
"(5) The Supreme Court must hear and determine an appeal duly made under this section, and may make such orders as it considers appropriate.
(6) Without limiting subsection (5), the orders that may be made by the Supreme Court on an appeal include —
(a)an order affirming a decision of the Appeal Tribunal; and
(b)an order setting aside a decision of the Appeal Tribunal and —
(i) making a decision in substitution for the decision set aside; or
(ii) remitting the matter for reconsideration in accordance with any directions of the Supreme Court."
The existence of such wide discretionary powers weighs against a conclusion that jurisdictional error in a tribunal decision as to a s 57 permit must always result in the invalidity of a permit. Further, because the identity of the applicable planning scheme made absolutely no difference to the issues relating to the sewer that the Tribunal had to determine, I do not consider it appropriate for me to set aside the Tribunal's decision under s 25(6)(b) in consequence of the Tribunal's error as to which planning scheme applied.
For these reasons, I reject the appellant's submissions as to the consequences of the Tribunal's error. Its error was inconsequential. There is no reason why this appeal should be allowed as a result of that error.
Public advertising and changes of plans (proposed Ground 1A)
At the hearing of the appeal, counsel for TasWater applied to amend the grounds of appeal by adding a new ground 1A, reading as follows:
"1A The Tribunal was without jurisdiction to determine the appeal as the development application was not advertised in accordance with statutory notification requirements as prescribed by s 57(3) of Land Use Planning and Approvals Act 1993 and r 8(3) [sic] of the Land Use Planning and Approvals Regulations 2004.
Particulars
(a) In the alternative to ground 1, the permit issued on 4 August 2016 in purported reliance on the West Tamar Interim Planning Scheme 2013, erroneously relied on the public notification undertaken in 2013 when the West Tamar Planning Scheme 2006 was in effect.
(b) The permit issued on 4 August 2016 approved plans dated 14 June 2016, whereas the public notification undertaken in 2013, advertised plans dated 21 December 2012. The plans were materially different."
I understand that the solicitors for each respondent were notified of the proposed application. I heard argument as to the application for leave to amend in the course of the hearing of the appeal, and reserved my decision as to both that application and the appeal. The proposed ground 1A was fully argued.
Ground 1A(a) can be ignored. It was included just in case I decided that the 2013 interim scheme applied to the application. It did not.
Ground 1A(b) concerns changes to the design of the proposed subdivision that were formulated after the permit application had been publicly advertised.
The Land Use Planning and Approvals Regulations 2004 required details of the permit application to be advertised in a newspaper, displayed at the council's office, given to the owners and occupiers of adjoining properties, and displayed on the subject land. Those steps were taken in January 2013. Under s 57 of the LUPA Act, the public were entitled to inspect the application and all documents submitted with it, and to make representations to the council. As I have said, only TasWater made a representation.
In the years that the application was pending, questions were raised by the council and addressed by Bass in relation to subsoil drains, the positioning of groundwater controls, landslip risks, the location of public open space, and the positioning of infrastructure. As a result, Bass amended its proposal plan. The permit required the development to be carried out as shown on a plan dated 14 June 2016, but that plan differed in some respects from the plan that was available for public inspection in January 2013.
When this matter was before the Tribunal, TasWater did not take any point in relation to the differences between the 2013 plan and the 2016 plan. Having regard to that fact, it is difficult to see why it might now be in the interests of justice to allow TasWater to amend its grounds of appeal to raise this issue for the first time.
The proposed ground 1A(b) could succeed only if the changes reflected in the June 2016 plan made the development something that was "significantly different from the development which was sought" at the time of the advertising: Carr v Minister for Land and Water Conservation [2000] NSWLEC 89, 109 LGERA 175 at [49]; St Helen's Area Land Care & Coast Care Group Inc v Break O'Day Council [2007] TASSC 15, 16 Tas R 169 at [12]. A comparison of the first plan and the final plan reveals a few differences. Some piping is shown on the final plan, whereas none is shown on the original plan. A detention basin on Lot 106 was oval on the original plan, but is boomerang shaped on the final plan. Ten residential lots have been abolished, and two lots enlarged to incorporate the land originally comprised in them. A through street has been changed into two cul-de-sacs, but that will leave two streets, more or less parallel with the original through street, that motorists could use. Counsel for TasWater did not draw my attention to any other differences between the two plans. The size and layout of the subdivision remains the same, and the density of most of it remains the same.
The question whether or not the development approved was "significantly different from the development which was sought" is a question of fact and degree. The question whether it was open on the evidence for the Tribunal to conclude that the development approved was not significantly different from the development sought is a question of law. In my view, had the point been taken, it would have been open to the Tribunal to conclude that the development approved was not significantly different from the development originally proposed.
Because this point was not raised before the Tribunal, and because I think it has no merit, I have decided to refuse leave to amend.
The "imperatives", functions and powers of TasWater (Grounds 2 and 3)
Grounds 2 and 3 of the notice of appeal read as follows:
"2The Tribunal erred in failing to have regard to the objectives under s 6 of the Water and Sewerage Corporation Act 2012 including the economic imperatives of the Appellant and the efficient provision of Statewide water and sewerage infrastructure.
3The Tribunal erred in misapprehending the nature and limit of its functions or powers. The statutory framework, specifically the Water and Sewerage Corporation Act 2012, the Water and Sewerage Industry Act 2008, the Land Use Planning and Approvals Act 1993 and the Resource Management and Planning Appeal Tribunal Act 1993, which provides the basis for the Appellant, and on appeal the Tribunal, to calculate or impose an infrastructure contribution."
Before the commencement of the WSC Act, Tasmania had three regional authorities that were responsible for water and sewerage infrastructure. It was decided to replace them by a single corporation. As a result, the WSC Act was enacted and TasWater was incorporated. Its objectives are set out in s 6(1) of the WSC Act. That subsection reads as follows:
"(1) The principal objectives of the Corporation are as follows:
(a) to efficiently provide water and sewerage functions in Tasmania;
(b) to encourage water conservation, the demand management of water and the re-use of water on an economic and commercial basis;
(c) to be a successful business and, to this end —
(i)to operate its activities in accordance with good commercial practice; and
(ii)to deliver sustainable returns to its members; and
(iii)to deliver water and sewerage services to customers in the most cost-efficient manner."
Ground 2 appears to relate to the principal objective referred to in s 6(1)(c), namely "to be a successful business".
Part 2 of Sch 1 to the LUPA Act sets out the objectives of the planning process established by that Act. By virtue of par (h) of Pt 2, one of those objectives is:
"to protect public infrastructure and other assets and enable the orderly provision and co-ordination of public utilities and other facilities for the benefit of the community."
It follows that that objective should be pursued by any council when considering a s 57 permit application, and by the Tribunal whenever it stands in the shoes of the council in an appeal concerning such an application.
The permit condition that TasWater required the council to impose required Bass to pay the full cost of the upgrading of the sewer, even though the sewer's catchment area contains properties not belonging to Bass. That was consistent with TasWater's published "Developer Charges Policy", a copy of which was before the Tribunal. As I have said, Bass contended that it should not have to pay the full cost of upgrading the sewer because it served the properties of other landowners. The Tribunal rejected that contention out of hand. In its reasons, at [56], the Tribunal said:
"… the Tribunal is not seeking to undermine the proposition at the heart of TasWater's case, to the effect that it is reasonable that a developer should pay to improve sewers needing an increase in size because of additional flow generated by the development. The principle is sound."
In the Tribunal proceedings, TasWater contended that the sewer should be upgraded on the basis that the sewer's Peak Wet Weather Flow, after the establishment of the subdivision, would be 13.07 litres per second. The Tribunal concluded that a figure of 5.0 litres per second should be adopted. It is that conclusion that grounds 2 and 3 seek to impugn. TasWater contends that, in reaching that conclusion, the Tribunal failed to have regard to s 6 of the WSC Act and par (h) of the objectives of the planning system under the LUPA Act, and thereby erred in law.
TasWater does not contend that, when it requires a council to impose a permit condition under s 56P(2)(b) of the LUPA Act, that requirement is binding on the Tribunal. Such a requirement is binding on a council by virtue of s 56Q(2)(a). The appeal before the Tribunal was conducted on the basis that the Tribunal had the power to revise the permit condition relating to the upgrading of the sewer. None of the grounds of appeal assert that it lacked such a power.
Counsel for TasWater provided me with a written outline of argument. The submissions relating to grounds 2 and 3 contained the following (omitting case references and footnotes):
"48The Tribunal erred in misapprehending the nature and limit of its functions or powers in failing to have regard to the objectives under s 6 of the WSCA …
49The legislature intended the economic imperatives of TasWater to form an important consideration in the exercise of the decision-making power and would be considered vital matters in respect of the objectives under s 6 WSCA. Failure to have regard to this was fatal to the Tribunal's decision.
50The purpose of the legislative framework outlined above is to ensure TasWater considers its obligations as an infrastructure provider at a Statewide level. The Tribunal's decision focused on the individual circumstances of this development in isolation. The implications of the Tribunal's decision in this respect are far-reaching.
51The misapprehension was such that the Tribunal cannot be said to have performed its powers and functions entrusted to it and in doing so erred in law.
52The error was fundamental to the decision and materially affected the outcome warranted [sic] vitiating the Tribunal's decision."
Three engineers gave expert evidence before the Tribunal. One of them, Mr Brayford, gave evidence for Bass. The others, Ms Reid and Mr McKellar, were in-house engineers employed by TasWater. After summarising Mr Brayford's contentions, the Tribunal said, at [32]-[34]:
"[32] The Tribunal considers that an assessment of the assumptions, and their appropriateness in the context of the development does not involve it in assessing TasWater's policy per se. Rather it is assessing the application of the policy to the objective facts before it relating to the subdivision development in that locale. It is for the Tribunal to review the decision, and the assumptions underpinning it, on the basis of the evidence, and to reach its own conclusion.
[33] TasWater's case is put on a much narrower basis than the challenge brought against it invites. In its submission, the case is only about whether the requirement to update sewerage infrastructure external to the development site is reasonably related to the development the subject of the conditional approval. In this context, it submits that the Tribunal is required to determine what the relevant inputs will be in order to determine whether the requirement to upgrade the sewerage infrastructure external to the development is reasonably related to it such that the condition falls within the scope of the decision of the High Court in Western Australian Planning Condition [sic] v Temwood Holdings Pty Ltd [2004] HCA 63.
[34] The Tribunal considers the issue a little narrower than that. The appeal puts in issue the way in which the calculations have been made in respect of this condition on development, rather than challenging whether the condition itself is reasonably related to it. This is a middle ground: a concession that a contribution to the costs of works external to the development is related to it, in the Temwood Holdings sense, but that the calculation made in application of that principle results in an excessive contribution because it results from conservative assumptions."
Counsel for TasWater submitted to me that the Tribunal had erred in law by saying what it did at [34]. He made a similar submission in relation to the Tribunal's reasons at [50], where the Tribunal said:
"[50] The Tribunal considers that fast response inflow results generally from stormwater connections to the sewer or broken or improperly constructed infrastructure. None of these considerations should apply to new infrastructure and the problems should be corrected or stopped if they are found to occur, rather than the consequences being visited upon a developer who is unable to control them. Indeed, (and as well as minimising such occurrences) groundwater infiltration should be minimised using contemporary materials such that the new sewers should perform better than the existing part of the system."
The Tribunal's decision involved making an estimate of the Peak Wet Weather Flow of the sewer, as well as a value judgment as to how cautious it should be in making that estimate. In practical terms, TasWater appears to be contending that the Tribunal should have given more weight to the evidence of its expert witnesses, and less weight to the evidence of the developer's expert witness, because of TasWater's important role as a public authority. However the Tribunal does not have a duty to be biased in favour of public authorities.
On the hearing of every appeal, the Tribunal has a duty to make the "correct or preferable decision": Drake v Minister for Immigration (1979) 24 ALR 577 at 589; Kain v Glamorgan/Spring Bay Council (1996) 90 LGERA 326 at 335 (Wright J); St Helen's Area Land Care & Coast Care Group Inc v Break O'Day Council (above) at [71]. In determining a dispute about the upgrading of a sewer, there is no "correct" decision. The Tribunal has to determine what the "preferable" decision is.
When it addressed that question, TasWater's duty "to be a successful business" was a relevant consideration. The statutory objective of enabling "the orderly provision and co-ordination of public utilities and other facilities" was also a relevant consideration. However the objectives of the resource management and planning system of Tasmania contained other relevant considerations. The Tribunal is part of that system by virtue of s 5(3) of the RMPAT Act. Those objectives, as set out in cl 1 of Sch 1 to that Act, include the following:
"(b)to provide for the fair, orderly and sustainable use and development of air, land and water; and
(c)…
(d)to facilitate economic development in accordance with the objectives set out in paragraphs (a), (b) and (c); and
(e)to promote the sharing of responsibility for resource management and planning between the different spheres of Government, the community and industry in the State."
In my view the reference to fairness in par (b) and the reference to the sharing of responsibility between Government and the community in par (e) are both relevant to this case.
Nothing said by the Tribunal in the paragraphs impugned by grounds 2 and 3 was inconsistent with the Tribunal taking relevant considerations into account and giving them proper weight. All of the findings of fact in the impugned paragraphs were reasonably open to the Tribunal.
In its reasons at [50], the Tribunal took the view that the Peak Wet Weather Flow of the sewer should be estimated on the basis that TasWater should cause stormwater connections to the sewer to be eliminated. That conclusion can be seen as fair to Bass, and therefore consistent with objective (b). It can be seen as promoting the sharing of responsibility between the spheres of Government, which includes TasWater, and the community, which includes Bass. It can be seen as consistent with the delivery of "sewerage services to customers in the most cost-efficient manner" in accordance with TasWater's objectives: WSC Act, s 6(1)(c)(iii).
For these reasons, grounds 2 and 3 must fail.
Adequacy of reasons (Ground 5)
It is convenient next to deal with ground 5, which asserts that the Tribunal failed to give adequate reasons for its decision. Section 24(1) of the RMPAT Act requires the Tribunal to "give written reasons for its determination of an appeal". Section 24(2) requires the reasons to "include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based".
The Tribunal has not yet determined the appeal. As I have explained, its decision was a decision "in the appeal", but not a determination of the appeal. There is no common law obligation for tribunals or decision-makers exercising statutory powers to provide reasons for their decisions: Public Service Board (NSW) v Osmond (1986) 159 CLR 656; Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, 252 CLR 480 at [43].
By virtue of s 16(1)(a) of the RMPAT Act, the procedure of the Tribunal is within its discretion. Pursuant to s 16(1)(b), each appeal "is to be conducted with as little formality and technicality … as a proper consideration of the matters before the Appeal Tribunal permits". It follows that, when appropriate, the Tribunal may determine some of the issues in an appeal before it makes a final determination. In fact there is no reason why the Tribunal should not make a series of determinations before making a final determination. When it makes one or more decisions as to matters in dispute before it makes a final determination disposing of an appeal, there is no reason why it should not give reasons for any preliminary decision, or each preliminary decision, and thereby discharge in part its obligation under s 24(1) to "give written reasons for its determination of an appeal". But, although it may make preliminary determinations, it has no obligation to give reasons for its preliminary determinations prior to "its determination of an appeal".
It follows that, regardless of any deficiencies in the Tribunal's reasons for the decision under appeal, ground 5 must fail. However ground 5 should also be rejected on the basis that the Tribunal's published reasons for the decision under review were adequate.
Ground 5 reads as follows:
"5The Tribunal erred in failing to give adequate written reasons as required by s 24 of the Resource Management and Planning Appeal Tribunal Act 1993, including its findings on material questions of fact and reference to the evidence or other material in which those findings were based.
Particulars
(a) In circumstances where the Tribunal noted that it had considered the evidence of Mr McKellar, Ms Reid (witnesses for the Appellant) and Mr Brayford (witness for the First Respondent) with respect to the methodology it failed to provide any reasons for how it reached a different calculation absent evidence to support that alternative methodology.
(b) In circumstances where at [48], [52] and [56] the Tribunal held that the calculation failed to consider the actual site conditions, it then went on to find that the evidence disclosed that the Appellant did have regard to local conditions including the local catchment at [47] and equivalent tenements at [38]-[40].
(c) By relying on mixed methodology in adopting parts of the Water Services Association of Australia Code, the TasWater supplement and the computer model, the Tribunal failed to explain the rationale for adopting each component of the methodology.
(d) In circumstances where at [53] the Tribunal adopted a 'C' factor of 0.8, the Tribunal failed to explain how this factor took into account site specific circumstances more so than the 'C' factor of 1.6 adopted by the Appellant."
One of the exhibits before the Tribunal was the Sewerage Code of Australia WSA02-2002-2.3, published by the Water Services Association of Australia. It was referred to by the Tribunal in its reasons as the "WSAA Code". Appendix B of that code is entitled "Flow Estimation for Undeveloped Areas". Item B1 in Appendix B provides a formula for calculating design flow, as follows:
"Design flow = PDWF + GWI + IIF".
In that equation:
· PDWF is the peak daily dry weather (sanitary) flow.
· GWI refers to groundwater infiltration.
· IIF refers to "the peak (rainfall dependent) inflow and infiltration that may enter the sewer network as inflow via localised flooding of yard gully traps, illegal stormwater connections and as rainfall infiltration through pipe and maintenance structure defects".
Those are the three components of a sewer's contents that I referred to at [1] above.
The engineer who gave expert evidence for Bass, Mr Brayford, provided a proof of evidence that was before the Tribunal. In that proof he undertook a calculation of his own estimate of PDWF + GWI + IIF, and set out for comparison a calculation based on the evidence of the expert witnesses of TasWater. The relevant parts of those calculations are set out below. Mr Brayford's calculations appear under the heading "JMG parameters". The TasWater calculations appear under the heading "TW Parameters".
"ITEM Parameters
JMG parameters TW Parameters Flow L/s Flow L/s Gross ARea HA 19.25 ET 112.00 EP 336.00 ADWF 0.00 0.71 Assume
same0.71 PDWF 4.00 2.82 Assume
same2.82 GWI Portion Wet 0.60 0.29 Assume
same0.29 IIF Ep/Ha 17.45 Aeff 6.57 6.57 C 0.80 1.60 I 1,2 16.25 23.85 Fsize 1.09 1.09 Fcontainment 1.30 1.30 IIF 3.39 * 2.94 9.96 PDWF+GWI+IIF 6.50 * 2.01 13.07"
In its reasons at [41], the Tribunal rejected Mr Brayford's calculation of a PDWF (Peak Dry Weather Flow) of 2.82 litres per second, and concluded that the peak dry weather flow would be estimated at 1.31 litres per second. It said this at [41]:
"In relation to the central issue in this appeal the Tribunal has applied its expert judgment to the evidence. It adopts the following analysis derived from the evidence. First, flow from a household is taken to be 550 litres per equivalent tenement per day with a peaking factor of 1.84 above average (based on the TasWater modelling guidelines). This indicates a peak flow in dry weather of 112 (the number of equivalent tenements) multiplied by 550 litres, over a 24 hour period. This can be converted into litres per second if that number is divided by 24 (hours per day) and then by 3,600 (the seconds per hour) and multiplied by 1.84. The result is a peak dry weather flow of 1.31 litres per second after all the lots are built upon."
In relation to that paragraph:
· It is clear that the figure of 550 litres per equivalent tenement must have come from the TasWater Modelling Guidelines, which were before the Tribunal. Those guidelines relate to the estimation of sewer flows. On the twelfth page of those guidelines, whose pages are not numbered, the authors have written, "Assign wastewater flows for residential and non-residential customers using a wastewater file with a default loading rate of 550 L/ET/day."
· "ET" stands for "equivalent tenements". TasWater contended that it was appropriate to make calculations on the basis that the completed subdivision would comprise 112 equivalent tenements, but Mr Brayford argued that the appropriate number would be larger. In its reasons at [24]-[40], the Tribunal concluded that it was reasonable to adopt TasWater's figure of 112.
· As the Tribunal made clear in footnote 5 to its reasons, the figure of 1.84 has been derived from the TasWater Modelling Guidelines. On the thirteenth page of those guidelines there is a table that shows the diurnal pattern of wastewater flows for residential and non-residential areas. The previous page says that that table should be used when actual data on a property's typical diurnal pattern is not available. The table shows the estimated wastewater flow at hourly intervals through a day, expressed as a multiple of the average flow rate over the 24 hour period. The highest hourly figure is 1.8445 at 9am. The Tribunal has obviously rounded that down to 1.84.
· The final figure of 1.31 litres per second represents 112 equivalent tenements discharging 550 litres per equivalent tenement per day, with a peaking factor of 1.84 times the average flow, converted to a flow rate in litres per second.
In Mr Brayford's calculation, which produced in a figure of 6.50 litres per second, if one reduced the "PDWF" figure from 2.82 to 1.31 litres per second, the final figure would be 4.99 litres per second, calculated as follows:
PDWF 2.82
GWI 0.29
IIF 3.394.99
It is obvious that the Tribunal adopted its own PDWF figure of 1.31, retained Mr Brayford's GWI figure of 0.29 and his IIF figure of 3.39, added them together, got 4.99, and rounded that figure up to 5.0. In its reasons at [52]-[54] the Tribunal said the following:
"[52] Total infiltration is calculated under the WSAA Code, using a factor known as 'C' and rainfall intensity, referred to as 'I'. 'C' is derived from the sum of a component ranging from 0.2 to 0.8 which relates to soil type, aspect and drainage and a component ranging from 0.2 to 0.8 relating to sewerage system condition. The two are combined by adding them together such that 'C' ranges from 0.4 to 1.6. However the TasWater supplement to the WSAA Code, in evidence before the Tribunal, says that a 'C' of 1.6 shall be used for design. This assumes a worst case for all conditions without considering the actual situation.
[53] The Tribunal finds that this figure is too high. Having considered the matter, it has reached the conclusion that the actual site conditions support the value for 'C' advanced by Mr Brayford. This was a figure of 0.8. The TasWater supplement to the WSAA Code indicates that a rainfall intensity of 16.5 mm per hour should be used for catchments in the northern area of the State. Mr Brayford has used this intensity in his calculations.
[54] The Tribunal concludes that a reasonable calculation of design flow from the development should be based on an equivalent tenement of 112, a 'C' factor of 0.8, and a rainfall intensity of 16.5 mm per hour. This gives a peak wet weather flow of 5 litres per second." [Footnote omitted.]
It appears from item B4 in the WSAA Code that the figure for "IIF" – the "Peak (Rainfall Dependent) Inflow and Infiltration" – is the product of three factors. One of those factors, represented by the letter "C", is called the "leakage severity coefficient". That coefficient is explained in item B4 as follows:
"C is the IIF leakage severity coefficient (similar to the stormwater 'run-off coefficient'). It defines the contribution of rainfall run-off to sewer flows via IFF. C comprises the sum of the contributions from a 'soil movement' aspect eg highest contribution for expansive clays and a 'defects aspect' including the effectiveness of the Water Agency's long-term strategy for maintenance and managing the impact of sanitary sewers. With reference to Table B1, C will lie in the range from 0.4 to 1.6."
The Tribunal made it perfectly clear in its reasons at [52]-[54] why it accepted Mr Brayford's figure of 0.8 for "C" in preference to the other experts' figure of 1.6.
Section 24 requires the Tribunal only to set out the findings that it actually made and the basis for those findings, rather than to make a finding on every issue that any party considered to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30, 206 CLR 323 at [68]; Hobart City Council v Resource Management and Planning Appeal Tribunal [2007] TASSC 99, 17 Tas R 137. It does not have to give reasons for not making findings that it did not make. As Underwood J (as he then was) said of a requirement to give reasons imposed by workers compensation legislation in Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246 at 262, the reasons "must be sufficient to enable the parties to ascertain what facts were found, which of the arguments … were accepted and which were rejected and what law was applied to arrive at the ultimate determination".
The Tribunal could have been more thorough in explaining the evidence on which its calculations were based. However the parties could not have had any difficulty in seeing that the Tribunal had applied the methodology of the WSAA Code, calculated the peak dry weather flow figure of 1.31 litres per second on the basis explained above, adopted Mr Brayford's "GWI" figure of 0.29 litres per second, adopted his figure of 0.80 for "C" in preference to TasWater's figure of 1.60, and calculated the peak wet weather flow to be 5.0 litres per second accordingly. Its stated reasons for its findings of fact and its references to the material on which those findings were based were therefore adequate.
Natural justice (Ground 4)
The Tribunal's estimate of 5.0 litres per second for the sewer's peak wet weather flow was of course lower than Mr Brayford's figure of 6.50, and far lower than TasWater's figure of 13.07. Prior to the delivery of the decision under appeal, the Tribunal did not notify the parties that it was contemplating making a finding that a figure lower than 6.50 was appropriate. Section 16(1)(d) of the RMPAT Act requires the Tribunal to "observe the rules of natural justice". TasWater contends that it breached the rules of natural justice by making the decision under appeal without first giving it an opportunity to make submissions as to the appropriateness of a finding that the peak wet weather flow was to be estimated at 5.0 litres per second.
Ordinarily a duty to observe the rules of natural justice does not require decision-makers to disclose their provisional conclusions: Sinnathambi v Minister for Immigration and Ethnic Affairs (1986) 66 ALR 502 at 506. As Lord Diplock said in F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:
"… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished."
However the rules of natural justice require a decision-maker to inform the parties if he or she is minded to decide a case on a basis that is fundamentally different from the submissions advanced by the parties. The High Court considered such a situation in Pantorno v The Queen (1989) 166 CLR 466. That case concerned a drug prosecution in Victoria. A drug statute prescribed different penalties according to whether or not the court was satisfied that an offence was not committed for any purpose relating to trafficking. Following a plea of guilty, the accused's counsel told the judge that the drug was for the accused's own use, and that the Crown did not suggest otherwise. That assertion was not challenged by the Crown. The judge sentenced on the basis that there was no evidence that the accused's possession of the drug was not for a purpose relating to trafficking. Mason CJ and Brennan J said at 473:
"When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise: see Fairmount Ltd v Environment Secretary [1976] 1 WLR 1255, at 1265-1266."
The same principle extends to findings of fact that would take the parties by surprise. In Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, a worker had sued two companies alleging that each had negligently exposed him to asbestos and caused him to suffer an asbestos-related disease. He settled his claim against one of the companies before the trial. The trial judge held that the other company alone was entirely responsible for the plaintiff's illness. An appeal succeeded on the basis that that company had been denied procedural fairness. Ipp JA, with whom Mason P agreed, said at [78]-[79]:
"78 … although the basis on which the parties conduct a trial does not bind the judge, if the judge contemplates determining the case on a different basis he or she must inform the parties of this prospect so that they have an opportunity to address any new or changed issues that may arise.
79 A failure so to inform the parties will ordinarily result in a denial of procedural fairness. A new trial will be ordered if a party is not afforded a fair trial in circumstances where a properly conducted trial might possibly have produced a different result. It will not ordinarily be necessary to lead evidence to prove that the denial of procedural fairness had the potential to affect the outcome; in most cases the facts will speak for themselves."
In my view the Tribunal did not reach the impugned decision on a basis that differed from the basis on which the parties conducted their cases. The application of the methodology of the WSAA Code cannot have taken either party by surprise. The adoption of Mr Brayford's figure of 0.8 as the leakage severity coefficient or "C" could not have taken either party by surprise. The success or failure of ground 4 depends on whether it was unfair for the Tribunal to calculate the sewer's peak dry weather flow on the basis of certain evidence provided by TasWater when that resulted in a lower figure than the figure arrived at by Mr Brayford.
In my view the basis upon which the Tribunal assessed the peak wet weather flow of the sewer was not so different from the bases contended for by the parties that it was unfair of the Tribunal not to inform the parties of the reasoning that it was thinking of adopting. Whether it was unfair or not involves a question of degree. The Tribunal's final figure of 5 litres per second was just under 77% of Mr Brayford's final figure of 6.50 litres per second. A calculation resulting in a much lower figure, or in a much higher figure than TasWater's 13.07 litres per second, may well have necessitated the informing of the parties in order to avoid a denial of procedural fairness. But I am not satisfied that the reasoning of the Tribunal or its final figure were so different from what the parties contemplated that procedural fairness was denied. Ground 4 must therefore fail.
Conclusion
I have decided that every ground of appeal must fail. The application to amend the grounds of appeal is dismissed. The appeal is also dismissed.
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