University of Tasmania v Tasmanian Planning Commission - [2019] TASSC 7

[2019] TASSC 7

COURT: SUPREME COURT OF TASMANIA

CITATION: University of Tasmania v Tasmanian Planning Commission

[2019] TASSC 7

PARTIES:  UNIVERSITY OF TASMANIA
  v
  TASMANIAN PLANNING COMMISSION
  THE HONOURABLE ELISE ARCHER
  ATTORNEY-GENERAL

FILE NO:  2020/2018
DELIVERED ON:  28 February 2019
DELIVERED AT:  Hobart
HEARING DATE:  21 February 2019
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Administrative Law – Judicial review – Failure to exercise jurisdiction – Planning authority refused applicant's request for planning scheme amendment – Reasons for decision not to be over zealously scrutinised – Natural justice – Application for deferment – Refusal to defer assessment a denial of procedural fairness.

Tasmanian Planning Commission Act 1997 (Tas), s 10(1)(b)(v).
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Russell v Duke of Norfolk [1949] 1 All ER 109; Streets v Lucas [2013] TASSC 45, referred to.
Aust Dig Administrative Law [1045]

REPRESENTATION:

Counsel:
             Applicant:  A Spence
             Intervenor:  P Turner
Solicitors:
             Applicant:  Page Seager
             Intervenor:  Solicitor General

Judgment Number: [2019] TASSC 7
Number of paragraphs: 30

Serial No 7/2019
File No 2020/2018

UNIVERSITY OF TASMANIA v TASMANIA PLANNING COMMISSION
and THE HONOURABLE ELISE ARCHER ATTORNEY-GENERAL

REASONS FOR JUDGMENT ESTCOURT J
28 February 2019

The proceedings

This is an application for review of a decision of the Tasmanian Planning Commission pursuant to the provisions of the Judicial Review Act 2000. The respondent Commission filed a notice of submission and the Attorney-General became an intervenor in the proceedings.

The background

The following background to this application is taken from the written submissions of counsel for the applicant, Mr Spence:
"The legislative regime is the applicable version of the LUPAA s30 Division 2, ss31 through to ss43 and the Tasmanian Planning Commission Act 1997 (TPC Act).
The University conducted an audit of, inter alia, its Sandy Bay campus to consider properties surplus to requirements. It identified three Sandy Bay properties and Mount Nelson Villas, being student accommodation.
The Sandy Bay campus was zoned a special purpose planning zone under the Hobart Interim Planning Scheme 2015. It had a similar zone status under the prior City of Hobart Planning Scheme 1982 (CHPS).
The University, for its own purposes, has a Master Plan. Volume 2 relates to the Sandy Bay and Hobart City Campus. It is not a planning document. It provided design ethos, breakup of precincts, use of precincts and the like.
With the transmission from the CHPS to the HIPS, the University considered the new scheme. It sought an urgent amendment to the HIPS in July 2015. The University was concerned that some aspects of the Master Plan had been sourced for the scheme controls and that was inappropriate. It sought flexibility given the likelihood of disposal of buildings. That urgent amendment was approved by the Commission.
Of relevance was the addition of subparagraph (g) to the desired future character statement.
'The Upper Campus is an area in transition as the University divests itself of redundant assets. It is intended that future use and development of the Upper Campus will be reviewed and subject to further applications for amendments to the Planning Scheme.'
Frazer Read, town planner, was engaged by the University. He prepared an application for a scheme amendment on 31 May 2017.
A similar application to amend the scheme and rezone Mount Nelson Villas was made on 14 January 2018.
Council determined to initiate the amendment. The only issue it had was the potential for land use conflict which was addressed by drafting. Thereafter the draft amendment was certified.
The draft amendment was advertised, and representations invited, but no representations were received.
Council, in its 39 LUPAA report to the Commission, stated that its support of the draft amendment had not changed.
The Commission was obliged to consider the draft amendment, representations, statement of recommendations as soon as practical. In this case nothing happened until 28 October 2017 when the Commission wrote to the parties.
The Commission raised concern in respect of the application of the Southern Tasmania Regional Land Use Strategy (STRLUS) and compatibility with the draft amendment. Responses were made by both the University and the Council in respect of this on 30 October and 7 November respectively. S30O LUPAA required amendments to be, as far as practical, consistent with any applicable regional land use strategy.
On 24 January the Commission appointed Greg Alomes and Marietta Wong as its delegates and scheduled a directions hearing. Under s 40(4) LUPAA the Commission can hold a hearing even if no representations are received.
This case was unusual as virtually every case before the Commission, or its predecessor, was in circumstances where there were representations and parties having distinct positions. In effect an adversarial system where issues were delineated.
There were a series of directions hearings, letters from the Commission, responses from Council and University.
Following the initial directions hearing of 6 February the Commission scheduled a further directions hearing of 27 February 2018 and outlined the matters to be considered and sought submissions prior to close of business 20 February.
The Council provided its response.
The University's response was also provided on 20 February. It addressed all matters raised by the Commission.
The response included a statement from David Clerk, the chief operating officer, confirming the University's strategy and review and addressed the use of buildings that were excess to the University's needs.
It noted the UniPrint services had been outsourced and that the building was the subject to a contract of sale. It dealt with the school of business and economics which had been relocated to the Lower Campus and the adjacent Hytten Hall and the Mount Nelson Villas.
The University also provided a brief report from Scott Newton, chief executive officer of Knight Frank, when he provided high level opinion in respect of the buildings to be disposed of and the potential future use. He also opined that the reusing of these buildings would not impact upon the CBD as Hobart's primary activity centre.
At no stage did the Commission raise Objective (a) as being in any way relevant to its determination. The application addressed it very briefly. The Council in its report did not refer to it as all.
The situation in respect to the Master Plan is curious. It was not referred to, or sourced, in the application and was not addressed in Council's report. To the best of the University's knowledge the Commission never had a copy of it. Certainly, none of its contents were specifically addressed by the Commission.
The Commission sought the specific sites to be identified in figure 34.3 of the draft amendment. It then proposed changes to the draft amendment which would not allow extension to those sites beyond 10%.
That restriction on existing uses was opposed as being inappropriate by both the University and the Council.
On 30 April the Commission identified issues it regarded as relevant. The University provided a detailed response on 7 May.
On 23 May the University sought that matters be deferred until the end of September to provide further information from the University's built environment infrastructure committee.
The Commission, somewhat disingenuously, by letter of 25 June, refused that request without providing any reasons. In the event it had in fact refused the application on 22 June. It communicated that refusal on 26 June.
The Commission approved the Mount Nelson Villas rezoning on 28 June 2018. It did not refer one way or the other to Objective (a), it accepted the justification for the rezoning." [Footnotes omitted.]
I make no comment about the applicant's characterisation of the Commission's refusal of the requested deferral as "disingenuous" and, as will be seen, I do not altogether accept the asserted position with respect to the Master Plan. Otherwise I accept the chronology as correct and useful for present purposes.

The issues

The issues raised by the originating application filed by the applicant, as amended on the hearing to add grounds 2(e) and (f), are framed in the applicant's written submissions in the following terms:
"1 Is the Respondent's (Commission) decision, refusing the planning scheme amendment sought by the Applicant (University), vitiated by error of law in that the Commission constructively failed to exercise its jurisdiction by;
(a) determining that Schedule 1 Part 2 Objective (a) (Objective (a)) of Land Use Planning and Approvals Act 1993 (LUPAA) was engaged by the application and provided a basis to refuse the draft amendment when the objective was not engaged.
(b) further, or in the alternative, posing for itself the wrong question in holding Objective (a) afforded a basis to refuse an application to amend a planning scheme;
(c) taking into account an irrelevant consideration in that it had regard to a non-statutory document, the University's Master Plan.
(d) denied the University natural justice in refusing a request to defer the decision. Further, it failed to respond to the request and did not provide the University the opportunity of making closing submissions.
(e) The process of the Commission was unreasonable and irrational in refusing a request to defer the decision.
(f) The decision was unreasonable and lacked evident and intelligible justification".

The Commission's decision

The Commission in its written reasons for decision expressed its "decision" as follows:
"Decision on draft amendment
The draft amendment is rejected under section 41(b) of the Land Use Planning and Approvals Act 1993 because it does not further Objective (a) of Part 2, Schedule 1 of the Act."
As very helpfully pointed out by counsel for the intervenor, Mr Turner, in his written submissions:
"… s 33(1) of the Land Use Planning and Approvals Act 1993 (LUPAA). Schedule 6 of LUPAA sets out transitional provisions in relation to the Land Use Planning and Approvals Amendment (Tasmanian Planning Scheme) Act 2015. That commenced on 17 December 2015 (Statutory Rule 92 of 2015). In consequence, and by virtue of cl (2)(b) of Schedule 6 Parts 2A and 3 of LUPAA, extant immediately before that date, governed the amendment process. References to sections of LUPAA in this Outline are to those in that version of the Act unless otherwise specified. That version of the Act (ie the version current from 1 April 2015 to 16 December 2015) is most readily accessed on the Tasmanian Planning Commission website –

Issues 1(a) and (b) – Objective (a) misapplied

Counsel for the applicant argues these issues in his written submissions as follows:
"Schedule 1 to LUPAA contains 'Objectives'. S5 states that they are to be 'furthered'. Neither term is defined but, in Macquarie Concise Dictionary 'Objective' is defined as 'an end towards which efforts are directed; something aimed at' and 'further' is 'promote; advance; forward'.
The Part 1 Objectives are of the 'Resource Management and Planning System of Tasmania' and they are broad and aspirational.
The Part 2 Objectives are of the planning process established by this act and support Objectives in Part 1.
In my submission Objectives have no work to do in respect of an individual process. They are at a higher level and are not absolute. Indeed, they are conflicting, the Objectives in Schedule 1 creates a framework but not afford a basis to refuse or approve a development or amendment. See Abret Pty Ltd v Wingecarribee Shire Council[1].
[1]     Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343
'42   …, it is apparent that his Honour's reasoning is directed to the objectives of the zoning table. They are not provisions of the LEP that control development. Rather, they set the framework in which the LEP operates. The objectives themselves are not necessarily consistent, but reflect the conflicting demands upon development within the particular Local Government Area. ... It was not suggested by Council that there is a priority of objectives in the clause. Accordingly, there was no basis for the trial judge to rely upon the objective in para (d) rather than the objective in para (i).'
See also AMP Capital v Tim Shellshear & Associates Pty Ltd & Anor[2].
[2]     AMP Capital v Tim Shellshear & Associates Pty Ltd & Anor (2012) 189 LGERA 304
'52   AMP cites no authority for the submission that the relevant objectives are not to be read as a whole. On the contrary, it is a well-known principle of construction that the such provisions must always be read in their context: … The relevant context is the group of the various objectives of the zone. The objectives are not necessarily consistent but reflect the conflicting demands upon development within the area: ...'
There is a long line on authority for the proposition that general objectives cannot be used as a basis to refuse a proposal, see Von Witt v Hobart City Council[3] and Krushka v Peacock and Hobart City Council[4].
This authority has been held to apply to Schedule 1 Objectives, see Novak International Pty Ltd v Resource Planning and Development Commission[5]. In referring to the Objectives and the framework of Objectives, his honour Slicer J held:
'Whilst cl 1(e) refers to the sharing of responsibility, here, although it provides a framework of objectives, it provides no additional power to that afforded by LUPA, except in the most general terms. But it is required to pay regard to all of the statutory objectives and not selective reliance. As Wright J stated in Von Witt v Hobart City Council (1995) 86 LGERA 134 at 141: …'
More recently I turn to Clarence City Council v Resource Management and Planning Appeal Tribunal[6].
'56   …. The objectives are stated in general terms. Their formulation makes it clear that they are intended to operate by providing context and guidance in respect of the evaluative assessment engaged in in respect of various decisions required within the planning system generally, including in respect of the exercise of a specific discretion. … However, they cannot supplant the specific criteria against which the development is to be tested, nor in themselves constitute a test of a proposed development. ...'
The difficulty in using general stated policy statements as a form of control was addressed in another context in Richard Bejah Insurance and Financial Services Pty Ltd v Maning[7]."
[3]     Von Witt v Hobart City Council (1995) 86 LGERA 134
[4]     Krushka v Peacock and Hobart City Council (1997) 95 LGERA 427
[5]     Novak International Pty Ltd v Resource Planning and Development Commission (2008) 161 LGERA 277
[6]     Clarence City Council v Resource Management and Planning Appeal Tribunal (2018) TASSC 41
[7]     Richard Bejah Insurance and Financial Services Pty Ltd v Maning (2002) 123 LGERA 349 pages 353 to 358
Counsel for the intervenor, on the other hand, contends in his written submissions that the Commission delegates were obliged to further the objectives contained in Pt 2 of Sch 1 of the Land Use Planning and Approvals Act 1993 (the LUPA Act) because the Commission is relevantly the "… State … government". Alternatively, he argues that the "process" demands "sound strategic planning" on the part of the Hobart City Council, and the delegates were obliged to further Objective (a) in the assessment process. Either way, he submits, the delegates did not consider the draft amendment to comprise sound strategic planning and that was a proper basis for its rejection.

Discussion

It could never be sensibly held, in my view, that a particular proposed amendment must itself, quite literally, comply with Objective (a) of Pt 2 of Sch 1 of LUPA. The objective "to require sound strategic planning and coordinated action by State and local government" is one to be observed by "any person on whom a function is imposed or a power is conferred under this Act" (LUPA, s 5).
If the Commission delegates had related the various considerations set out in its reasons for decision to the decision itself and expressly held that, having regard to those considerations, the amendment should be refused as it did not represent sound strategic planning, then it would not have been arguable that such was not a proper basis for refusal. As an expert planning tribunal it was entitled to take into account fundamental principles of planning at that high level of abstraction.
In my view, on a fair reading of their reasons for decision, the gravamen of the Commission delegates' reason for rejecting the proposed amendment was their expressed concern that if the draft was approved before the master planning work foreshadowed by the University was undertaken, then the opportunity to carry out the strategic planning to determine the appropriate planning scheme policy and mechanism for achieving the applicant's objectives of divesting itself of its redundant buildings, while continuing the operation of the surrounding campus, would be lost. That would not be sound strategic planning. (One might reasonably infer, of course, that such was precisely the reason that the applicant had sought a four month deferral of the delegates' assessment process. A request that did not seem likely to be opposed by the Hobart City Council.)
Whether or not the Commission delegates were focusing on, or whether indeed they had in law, a duty pursuant to s 5 of LUPA to further Objective (a) by requiring sound strategic planning, or by ensuring it on the part of the Hobart City Council, it remains, in my view, that despite the unfortunate phrasing of the final paragraph of its reasons in which they pronounced their decision, they did not constructively fail to exercise their jurisdiction or otherwise err in rejecting the amendment.
In substance as opposed to form, the delegates rejected the proposed amendment because it did not, in their view, reflect sound strategic planning. They were entitled to do so in the exercise of their discretion. That the articulation of their decision was infelicitous does not vitiate it when the very expression of it carries with it such a clear implication of a valid basis for rejecting the proposal. It is trite that such decisions are not to be zealously over scrutinised with an eye attuned to error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

Issue (c) – Master Plan irrelevant

Counsel for the applicant submits as follows:
"It is our submission the Commission had regard to and took into account the University's 2007 Master Plan in refusing the application despite not having seen it.
It is generally accepted that an irrelevant matter is one which the decision maker is forbidden from considering.[8]
[8] Aronson & Groves, Judicial Review of Administrative Decisions, Fifth Edition, at [5.30]
The identification of relevant and irrelevant matters is to be determined by reference to the purpose of the legislation; Sean Investments v MacKellar[9]. In that case it was observed that it is easier to identify irrelevant matters than it is to establish that the decision-maker has failed to take into consideration a relevant matter.[10]
Irrelevant factors have been described as:
'… factors which are extraneous to the proper exercise of the power, so that to take them into account will also reveal legal error. …'[11]
On its terms the Master Plan is not a planning document nor does it purport to be. To the best of the University's knowledge it was never reviewed by the Commission. It was not referred to in the scheme application documentation, nor did the Council refer to it in its report.
In order for the decision to be vitiated for taking into account an irrelevant matter, that matter must be germane or significant to the decision. In this case the Commission enquired as to the status of the Master Plan. It regarded a review of the Master Plan as being relevant to alternative zoning. In its conclusion stated 'the Commission considers its strategic planning for the campus (potentially in the form of review of the current Master Plan), is crucial to determining the appropriate planning scheme policy and mechanism'[12]. [My emphasis.]
Documents and plans prepared by an individual land owner are not relevant to planning outcomes. At best they provide background or motive for a particular owner. The courts have held that documents which are personal to an entity and have not gone through the public process are not relevant to planning outcomes. See Flints Architects Pty Ltd on behalf of Australian Independent Retailers v Kingborough Council[13] and Shire of Sherbrooke v FL Byrne Pty Ltd[14]."
Further see Novak[15]. That case involved a bulky goods proposal being refused inter alia on the basis of so called retail hierarchy which was an irrelevant matter and improperly construed[16]."

Discussion

[9] Sean Investments v MacKellar (1982) 42 ALR 272 page 681

[10] Ibid

[11] Ballantyne v Workcover Authority of New South Wales [2007] NSWCA 239 at [113]

[12] Flints Architects Pty Ltd on behalf of Australian Independent Retailers v Kingborough Council [1998] TASSC 7

[13] Flints Architects Pty Ltd on behalf of Australian Independent Retailers v Kingborough Council [1998] TASSC 77

[14] Shire of Sherbrooke v FL Byrne Pty Ltd [1987] VR 353

[15] Supra - (2008) 161 LGERA 277

[16] Pages 288 to 290

Those submissions may be correct in legal principle but I do not apprehend that the Commission delegates took account of the Master Plan in the sense in which it would be necessary before it could be said that they erred in law by impermissibly having regard to an irrelevant consideration. Rather, as I have already noted, in truth the gravamen of their decision was their expressed concern that if the draft amendment was approved before the master planning work foreshadowed by the applicant took place, then the opportunity to undertake the strategic planning to determine the appropriate planning scheme policy and mechanism for achieving the applicant's objectives would be lost.
Moreover, the Master Plan was relevant. It had been alluded to by the applicant to the extent set out in the transcript of the hearings, and to the extent recorded in the delegates' reasons for decision. It was common ground that it was being reviewed and that it was difficult to give a time frame for the completion of that review. It was a relevant consideration. So much is abundantly clear from the letter of 23 May 2018.

Issue (d) – refusal to defer assessment

Counsel for the applicant made the following written submissions:
"The Commission must observe the rules of natural justice in a hearing (s10(b)(v)) of the TPC Act. The obligation however goes beyond the hearing. See R v Resource Planning & Development Commission; ex parte Dorney (No 2)[17].
[17]   R v Resource Planning & Development Commission; ex parte Dorney (No 2) (2003) 12 Tas R 69 page 101 at [41] to page 108 at [54]
Mr Read was instructed to seek a deferment of a decision given the Commission seemed to want further information of the University's plans. On 23 May 2018 the deferment of 4 months was sought.
Upon receipt of the letter the Commission did not respond in a timely fashion. At this juncture the ongoing directions hearings were in a state of limbo.
The Commission's response is confusing. By letter of 25 June 2018 it states as follows:
'I refer to your letter dated 23 May 2018 and your request for the Commission to defer consideration of draft amendment PSA-17-2 to enable the University to continue preparing its strategic master plan and submit further information by the end of September 2018.
I regret the time it has taken to provide this response, however, the Commission decided to finalise its decision on this draft amendment.'
Rhetorically one could ask why shouldn't a deferral occur? It was the University's application, there were no opponents opposing it and Council did not have an issue with it.
At the time of writing the letter the decision had been refused three days prior on the 22^nd of June and that was communicated on the 26^th of June. Observing natural justice dictated that the deferment be provided.
Refusing an application for an adjournment may vitiate the decision. See Hanlon, Pauline Anne and Hanlon, Robin Wayne v Ridgeway, Geoffrey R[18].
It is also apposite to observe that the Commission, if it required further material, ought to have asked the University for it and provided it the opportunity to respond See Kain v Glamorgan Spring Bay Council & Ors[19]."
[18]   Hanlon, Pauline Anne and Hanlon, Robin Wayne v Ridgeway, Geoffrey R [1993] TASSC 154
[19]   Kain v Glamorgan Spring Bay Council & Ors (1996) 90 LGERA 326
Counsel for the respondent made the following submissions:
"The obligation of the Commission was to afford the Applicant a reasonable opportunity to put to the Commission its 'case' (for want of a better word) in support of the amendment. In that regard several things can be noted.
First, in the request made by the University for the amendment was reference to paragraph (a) of Part 2 of Schedule 1. It was said:
'Comment
As demonstrated throughout this assessment the proposal is consistent with the relevant land use strategies. It is considered highly consistent with this requirement.'
The request was replete with references to the Master Plan and its effect(s).
Secondly in its letter of 7 February 2018 the Commission made very plain what would be considered at the hearing scheduled for 27 February 2018. In part the letter said:
'University's planning for the Upper Campus and 301 Sandy Bay Road
Clarification of current planning or plans that strategically inform the draft amendment setting out how the reuse of the buildings might occur in an orderly fashion, including:
·confirmation of the status of the 2007 Master Plan and any intention to review the master plan;
·the University's approach to disposal, sale or lease of surplus buildings or land;
·preferred uses and developments;
·subdivision planning; and
·demolition/redevelopment, including whether the draft amendment is to allow reuse as a short-term strategy, pending a longer term review of the Master Plan;…'
Thirdly the hearing occupied 27 February and 8 May 2018. During its course was reference to the Master Plan.
The forgoing illustrate that the University was given a fair opportunity to present its 'case', in light of concerns entertained by the Commission and in light of the impact of paragraph (a) of Part 2 to Schedule 1 LUPAA.
The relevant correspondence from the University's representative is dated 23 May 2018. It says, in part:
'The University continues to undertake a review of its existing infrastructure and is in the process of preparing its strategic master plan.
Given that the TPC's consideration of the amendment would be better informed by this work, the University requests that the TPC defer its assessment until the University is in a position to provide further information to support the application. It is expected that the University will be able to provide this further information by the end of September 2018.'
What the Applicant, in effect, sought is this:
·     that TPC not make a decision upon the draft amendment, despite having concluded its hearing;
·     that it reconvene at some later point to continue the hearing; and
·     at that time receive further evidence - in the event that it is relevant; and
None of that equates to seeking to have the Commission re-open the hearing for purposes of receiving relevant material.
It is submitted that the TPC declining to accept what was sought cannot constitute a denial of natural justice. As noted the obligation is to afford a fair opportunity to the University to make its case[20] for the proposed amendment. In Habib v Director General of Security[21] the Full Court of the Federal Court said:
'[77]… whether the allegation to afford natural justice has been discharged is not to be evaluated minutely or in a matter divorced from its context. As we have said, the obligation is a practical one.'
In the circumstances the Commission has discharged the obligation.
In the alternative, if what is complained of constitutes a denial of natural justice, it does not follow that relief should necessarily be granted[22]. There is nothing to show what, in the event of there being any 'deferral', would have occurred – what further material would have been put to the Commission. It is respectfully submitted that '… no useful result could ensue'[23]."

Discussion

[20] Minister for Immigration and Border Protection v SZMTA [2019] HCA 3 at [78].

[21] (2009) 175 FCR 411.

[22] Minister for Immigration and Border Protection v SZMTA (supra) at [79]-[95].

[23] Ibid at [85].

I accept the applicant's submissions in this regard.
As Pearce J observed in Streets v Lucas [2013] TASSC 45 at [26], "The content of natural justice varies from case to case." To the like effect, in Russell v Duke of Norfolk [1949] 1 All ER 109, Tucker LJ observed at 118 that the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, and the subject-matter that is being dealt with.
Pursuant to s 10(1)(b) of the Tasmanian Planning Commission Act 1997, the Commission may set its procedure at any hearing and:
"(i)      may inform itself about any manner in any way it thinks fit; and
(ii)     may receive oral or written evidence; and
(iii)     may consult with such persons as it thinks fit; and
(iv)     is not bound to act in a formal manner; and
(v)     must observe the rules of natural justice; and
(vi)     is not bound by the rules of evidence."
I accept the submission of counsel for the intervenor that it does not exercise judicial power and it was not, in conducting the hearing into the draft amendment, the arbiter of an inter partes dispute.
Nonetheless, in my view, procedural fairness on receipt of the applicant's letter of 23 May 2018 required at the very least that the respondent give the applicant an opportunity to be heard on its application for a deferral of the assessment. Indeed, I would go further in the circumstances of this case and hold that in view of the delegates' greatest concern, namely the consequences of the approval of the amendment in the absence of the "master planning work foreshadowed by the University", they should have granted the requested deferral rather than bringing the assessment process to an unnecessarily premature and unfair conclusion which would require the applicant in due course to recommence the application process afresh. Little would have been lost in the event that, at the end of that period, the work undertaken by the applicant still did not satisfy the delegates' concern.
It follows that the applicant succeeds on this issue. The relevant ground of the application for review, ground 2(d), should be upheld and the Commission's decision should be quashed.

Issue (e) – refusal to defer irrational

As pointed out by counsel for the intervenor, this issue is issue (d) recast, and given my conclusion on that issue there is no reason for me to examine the somewhat different considerations of unreasonableness and irrationality.
To the extent that the outcome might be characterised as irrational, I have held that it was in denial of natural justice so that any question of illogicality or irrationality is subsumed into that finding.

Issue (f) – outcome unreasonable

With respect to this issue I note, as conceded by counsel for the applicant in his written submissions, that the test for manifest unreasonableness remains a stringent one, and a finding of jurisdictional error on that ground will be uncommon.
In this case it is not necessary for me to embark upon a consideration of the question because I have found that the Commission's decision was not wrong in law.
I accept the submission of counsel for the intevenor that the reasons of its delegates, which are central to the inquiry, and which must be read reasonably, clearly disclose the basis for the determination made that the draft amendment be refused, and that the reason was within the boundaries of their decision-making discretion. The outcome was not unreasonable.

Disposition

The application to review is upheld and the intervenor's decision of 22 June 2018 is quashed. I will hear counsel as to the terms of the orders to be made.