Transend Networks Pty Ltd v Launceston City Council

[2001] TASSC 134

[2001] TASSC 134

CITATION:Transend Networks Pty Ltd v Launceston City Council & Ors [2001] TASSC 134

PARTIES:TRANSEND NETWORKS PTY LTD (ACN 082 586 892)

v

LAUNCESTON CITY COUNCIL

CLYDE NOMINEES PTY LTD (ACN 009 550 430)

ST FINN BARR'S CATHOLIC PRIMARY SCHOOL

THE STATE OF TASMANIA

JORY HOLDINGS PTY LTD (ACN 009 525 580)

McKENZIE PROPERTY TRUST

SHAW, Timothy

PINTARICH, Joe

TITLE OF COURT:               SUPREME COURT OF TASMANIA

JURISDICTION:  APPELLATE

FILE NO/S:LCA 61/2001

DELIVERED ON:                  23 November 2001

DELIVERED AT:                   Launceston

HEARING DATES:                24 October 2001

JUDGMENT OF:                   Slicer J

CATCHWORDS:

Administrative Law - Appeals from administrative bodies - Statutory appeals from administrative authorities to courts - Appeals from particular authorities - Resource Management and Planning Appeal Tribunal (Tas) - Questions of law - Duty to give reasons - Failure to give reasons.

Seablest Pty Ltd v Smith (1996) 91 LGERA 1; Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246, followed.
Abebe v Commonwealth (1999) 197 CLR 510; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105, considered.
Resource Management and Planning Appeal Tribunal Act1993 (Tas), s24(2).
Aust Dig Administrative Law [110]
REPRESENTATION:

Counsel:
           Appellant:  M E O'Farrell
           Respondent:  S B McElwaine
Solicitors:
           Appellant:  Dobson Mitchell & Allport
           Respondent:  Shaun McElwaine

Judgment Number:  [2001] TASSC 134
Number of Paragraphs:  23

Serial No 134/2001
File No LCA 61/2001

TRANSEND NETWORKS PTY LTD (ACN 082 586 892) v LAUNCESTON CITY COUNCIL, CLYDE NOMINEES PTY LTD (ACN 009 550 430),
ST FINN BARR'S CATHOLIC PRIMARY SCHOOL, THE STATE OF TASMANIA,
JORY HOLDINGS PTY LTD (ACN 009 525 580), McKENZIE PROPERTY TRUST,
TIMOTHY SHAW and JOE PINTARICH

REASONS FOR JUDGMENT  SLICER J
  23 NOVEMBER 2001

1. The appellant intended to construct a transmission line from the Trevallyn Substation across the Tamar River to a substation some distance from the river.  The project drawings, specifications and necessary documentation were prepared and planning approval sought from the first respondent.  The application was made and considered on the basis that the project was one of "discretionary use" requiring an exercise of discretion by the first respondent.  The first respondent refused to permit "the construction of a [sic] overhead … transmission line … and … the construction and use of a sub-station".

1. The appellant sought review in accordance with the Resource Management and Planning Appeal Tribunal Act 1993 ("the Act"). The respondents were parties to the hearing conducted by the Resource Management and Planning Appeals Tribunal ("the Tribunal"). At some stage some amendments were made to the planning proposal.

1. Central to the plan were the issues of whether the transmission lines ought be placed underground or carried by overhead suspension, and whether the location of the substation affected the amenity of nearby residents.

1. At the hearing the parties placed detailed factual and opinion evidence before the Tribunal.  Witnesses gave evidence and were cross-examined.  The issues were complex and significant to the economic, social and environmental interests of the parties.  The Tribunal upheld "the decision of the Launceston City Council to refuse to issue a permit" and dismissed the appeal. 

1. The notice of appeal claimed:

"1The Tribunal failed to discharge its duty pursuant to the Resource Management and Planning Appeal Tribunal Act1993 (Tas), section 24(2) in that it failed to include in its reasons findings on material questions of fact and a reference to the evidence or other material on which those findings were made.

2The Tribunal erred in law in that it gave reasons which failed to properly disclose the reasons for the conclusion reached."

1. At the conclusion of the hearing this Court upheld the appeal.  These are the reasons for that order.

1. The essence of this appeal was the contention that the Tribunal neither stated the basis on which the findings were made nor disclosed reasons for its decision.  It is said that the methodology used by the Tribunal was to state a precis of the evidence of the parties, identify differences and, without more, pronounce its conclusion. The methodology is said to inhibit any examination of whether there had been an error in legal principle or the finding could not have been supported by the evidence.

1. The Tribunal identified three criteria which governed the determination of the appeal, namely, Public Interest, Negative Impact and Visual Amenity.

1. In respect of the first two criteria, the Tribunal did no more than state the evidence of some of the witnesses.  It is impossible to discern whether a particular view or opinion was preferred and which facts, if any, supported a conclusion.  In relation to the issue of "Public Interest", it is impossible to ascertain which, if any, matters required by Parliament in the Land Use Planning and Approvals Act 1993 ("LUPAA"), were considered or applied.

1. Consideration of the issue of "Visual Amenity" was more complex.  Counsel for the appellant had submitted that visual amenity was not a ground upon which the first respondent was "entitled to use its discretion to refuse a permit pursuant to the provisions of Clause 10.4(i)(a) of the Launceston Planning Scheme".  Resolution of that question was required before consideration could be given to what weight, if any, ought be given to any factual findings made on this factor. It is incumbent on the Tribunal to assess each factor and consider their totality. That could not be done until the question of whether the factor could be considered at all in that assessment.  The Tribunal resolved this issue by stating:

"However the Tribunal is clearly of the opinion that it is implicit in Clause 6 of the Scheme that visual amenity is a factor which may be considered in a number of the matters listed under that Clause."

1. Assuming that the statement constituted a ruling that rejected the argument advanced in relation to cl 10, it remained incumbent on the Tribunal to decide any interrelationship of the two clauses and define the factors upon which the determination was based.  It stated:

"The Tribunal accepts the evidence of Mr Westaway and Mr Shield that from a planning consideration it is desirable for the transmission line to be located underground for its entire length after crossing the Tamar River. The Tribunal accepts that the transmission line would result in a significant loss of visual amenity whether or not it was placed on the eastern or western side of the Highway. Mr Graham said that whilst the appellant was required under the Electricity Supply Industry Act 1994 to construct the transmission line at the least cost he agreed that such a provision was subject to the Land Use Planning and Approvals Act 1993. In any event he stated that no costing had been made for an underground transmission line."

1. It is difficult to conclude other than that it is desirable for a transmission line to be located underground, but desirability and the balancing of competing factors require consideration, and exposure of the reasoning process giving rise to preference or resolution.  Acceptance that "the transmission line would result in a significant loss of visual amenity" might be self-evident, but its conclusion required explanation.  Simple acceptance of an opinion might require rejection of another in a reasoned manner.  Two statutory provisions, namely, the Electricity Supply Industry Act 1994 and LUPAA, imposed statutory obligations on both the applicant and the Tribunal. Those obligations required consideration of their impact on "desirability" and "significant loss". It is impossible to discern whether that process was undertaken and, if so, the basis of the conclusion.

1. No specific findings were made in relation to the criteria of "Public Interest" and "Negative Impact".  The latter issue required consideration of the impact on "Rivers, Outlet, Forest and Derby Streets".  No analysis was made of the relevant factors.  The significant question of "possible health risks which the proposed overhead transmission lines may have on pupils and residents" was identified, but not addressed.

1. The Tribunal having stated a precis of the evidence made a determination in the following terms:

"After considering all the evidence before it the Tribunal is of the view that the Council's refusal to issue a permit should be upheld.  The circumstances of this case are not such that the Tribunal, on the evidence before it, could allow the development to proceed by the way of imposing conditions.  The original proposal for the development has already been revised and it is not for the Tribunal to substantially alter an application which would equate to a significantly different development."

1. The decision contains three components. In considering all the evidence the Tribunal did not state whether it accepted the evidence of the respondents in its totality, or in part, whether it rejected the appellant's evidence as inaccurate or whether it had resolved differences or achieved a balance of the competing principles. It stated that it could not "allow the development to proceed by the way of imposing conditions".  Some conditions might have permitted continuation of the project or, at least, their identification and to some extent transferred responsibility to the appellant to decide whether the project remained feasible.  The statement that given revision "it is not for the Tribunal to substantially alter an application which would equate to a significantly different development" might be a correct statement of legal principle or an oversimplification.  From the reasons it is impossible to discern which.

1. The requirement of, and the standards applicable to, the giving of reasons have been discussed in Seablest Pty Ltd v Smith (1996) 91 LGERA 1. As was said at 12:

   "A party is entitled to know the terms of the case he or she is expected to meet. A party is entitled to be given notice of issues which are germane to the resolution of the dispute. The rules of procedural fairness require that a Tribunal not reach a conclusion on a basis which had been precluded from consideration. The principle prevents a Tribunal from receiving ex parte information (Errington v Minister for Health [1935] 1 KB 249) and requires it to give the parties to the controversy a fair opportunity for correcting or contradicting any relevant statement prejudicial to their view (Board of Education v Rice [1911] AC 179 and Minister for Aboriginal Affairs v Peko-Wallsend Ltd at 59). It is consistent with the approach taken by the courts in applying the principles expounded in Browne v Dunn (1893) 6 R 67 HL and Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206. Tribunals not strictly bound by the rules of evidence are subject to an obligation to afford procedural fairness because, as Brennan J said in Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482:

   'The Tribunal and the Minister are equally free to disregard formal rules of evidence in receiving material on which facts are to be found, but each must bear in mind that "this assurance of desirable flexible procedure does not go so far as to justify orders without a basis in evidence having rational probative force", as Hughes CJ said in Consolidated Edison Co v National Labour Relations Board (1983) 305 US 197 at 229. To depart from the rules of evidence is to put aside a system which is calculated to produce a body of proof which has rational probative force, as Evatt J pointed out, though in a dissenting judgment, in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256: …

   "No Tribunal can, without grave danger of injustice, set [the rules of evidence] on one side and resort to methods of inquiry which necessarily advantage one party and necessarily disadvantage the opposing party. In other words, although rules of evidence, as such, do not bind, every attempt must be made to administer 'substantial justice'."

1. The degree of analysis and exposure of reasoning will depend on the nature of the particular tribunal (Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 75 ALJR 1105). As was said in Seablest Pty Ltd v Smith (supra) at 4:

   "A specialist Tribunal consisting of persons inexperienced in the formulation and use of legal language ought not be expected to craft reasons for judgment in the style of 'a Brennan' or display the verve and reasoning power of 'a Denning'. It is inappropriate to examine the published reasons in order to expose an unskilled formulation or to undertake an over zealous exercise in reviewing the language used (Branson v Repatriation Commission (1991) 23 ALD 600). The question is whether the Tribunal discloses its reasoning process which led it to its conclusion (Ansett Transport Industries (Operations) Pty Ltd v Wraith (1983) 48 ALR 500) and in the words of Underwood J in Burgess v Umina Park Home for the Aged (1993) 2 Tas R 246 at 262, the test requires that 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'."

   In this case, the specialist tribunal possessed great experience in the important and complex area of economic planning and environmental principles.

1. The law does not require the production of a detailed and complex tome, the exclusion of every contrary contention or factor, or state findings on all matters of fact that are objectively material (Minister for Immigration and Multicultural Affairs v Yusuf (supra).  Accepting that Minister for Immigration and Multicultural Affairs v Yusuf (supra) alters the law in general terms, it nevertheless remains the law that reasons must be adequately provided so that the parties can decide whether the decision is suspect to challenge.  It must provide a basis for analysis and appellate review.  A closed statement does not permit an aggrieved party to examine the bases in order to test whether any of them can be shown to be wrong in principle or unsupportable by reference to the evidence.  Accepting that the test in Minister for Immigration and Multicultural Affairs v Yusuf (supra) impacts on the decisions of all tribunals and is not simply a decision dependant upon the particular terms of a statute, the methodology employed by the Tribunal in this case nevertheless remains inadequate.

1. The issues involved the activity of a large public utility, economics of development, health and safety, amenity, environmental impact on differing areas, the interests of residents and the community as a whole.  They were not adequately dealt with by the Tribunal. 

1. Ground 1 of the appeal concerns the statutory requirement of the Act, s24, that the Tribunal "give written reasons for its determination" which must include "its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."

1. The statutory provision does not alter the general provisions requiring exposition, but defines the requirements specific to a specialist tribunal.  In that regard it might permit a different standard, relative to the nature of the Tribunal, as stated in Minister for Immigration and Multicultural Affairs v Yusuf (supra), a case concerned with a similar legislative provision.  Given that the Court considers that the reasons stated by the Tribunal do not comply with either general principle or the test applied in Minister for Immigration and Multicultural Affairs v Yusuf (supra), it is not necessary to give detailed consideration to this particular ground.

Conclusion

1. Ground 2 of the notice of appeal has been made out and it is not necessary to determine ground 1. 

The appeal was upheld for the above reasons.  It is not appropriate to make "a decision in substitution".

1. The orders pronounced on 24 October were:

Orders

(1)      The appeal is upheld and the order of the Tribunal set aside. 

(2)      The matter is remitted for reconsideration by a Tribunal differently constituted.

(3)The appellant is to pay the respondents' costs thrown away by reason of the application to amend the grounds of appeal.  Such costs to be taxed.

(4)      The respondent to pay the appellant's costs of the appeal, such costs to be taxed.