Woldeyes v Brimbank City Council
[2016] VSC 639
•14 December 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S CI 2016 02032
| JOSEF ASRAT WOLDEYES | Plaintiff |
| v | |
| BRIMBANK CITY COUNCIL | Defendant |
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JUDGE: | EMERTON J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 October 2016 |
DATE OF JUDGMENT: | 14 December 2016 |
CASE MAY BE CITED AS: | Woldeyes v Brimbank City Council |
MEDIUM NEUTRAL CITATION: | [2016] VSC 639 |
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PLANNING & ENVIRONMENT – Application for leave to appeal and appeal from the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 – Application for planning permit to develop land – Tribunal made interim order permitting the applicant to submit modified plans – Tribunal then decided the application ‘on the papers’ without further submissions – Whether the Tribunal failed to afford procedural fairness – Whether Tribunal had duty to inform parties of its opinion about the modified application – Leave granted - Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J R Ribbands | Gigliotti Lawyers |
| For the Defendant | HWL Ebsworth Lawyers |
HER HONOUR:
Introduction
The plaintiff sought town planning approval from Brimbank City Council for a residential development comprising 13 dwellings on two lots at 64-66 Rockbank Road, Ardeer. The Council refused to grant a permit and the plaintiff sought review of the Council’s decision in the Victorian Civil and Administrative Tribunal.
At the commencement of the Tribunal hearing, the plaintiff filed amended plans for a 12 dwelling development. Following the hearing, which lasted the best part of a day, the Tribunal made what it described as an ‘interim order’ providing for the plaintiff to file modified plans for a 10 dwelling development.
Paragraph 3 of the interim order provided as follows:
Pursuant to Sections 100(2) and 127 of the Victorian Civil and Administrative Tribunal Act 1998, the applicant is ordered to provide further information concerning the proposal for 12 dwellings at 64-6 Rockbank Road, Ardeer in the form of amended plans and elevations. The amended plans and elevations must be generally in accordance with the plans tabled at the hearing and identified as:
Plans prepared by Elite A Pty Ltd, Drawing number 7897/20714
Plans A1 to A7 inclusive. Dated 10/12/2015.
But modified to show:
· Deletion of one of either Dwellings 2, 3 or 4 and deletion of Dwelling 8.
· The separation of single storey Dwellings 6 and 7 to create a common property walkway between these dwellings to provide private access to the Kororoit Creek Reserve. The common property walkway will be a minimum of 2.5 metres wide and contain a sealed path 1 metre wide, with landscaping either side.
· The space created by the deletion of either Dwellings 2, 3 or 4 to be used to create a ground floor gap between two of the remaining dwellings of at least 3 metres, which may be used for private open space or visitor parking. As a result of the deletion of a dwelling, one of the remaining dwellings may be increased from two bedrooms to three bedrooms, provided there is no increase in the upper level floor space of any remaining dwelling and that the provision of private open space for the dwellings remaining after the deletion of one of either Dwellings 2, 3 or 4 is in accordance with Standard B28 at Clause 55.05-4 of the Brimbank Planning Scheme.
· The relocation of the garbage bin enclosure areas to avoid flanking either side of the front vehicle entrance.
· A swept path analysis of vehicle movements to and from each garage and visitor parking space in accordance with the Design standards for car parking at Clause 52.06-8 of the Brimbank Planning Scheme.
The interim order provided for the Council to make comments in response to the amended plans and elevation. It then provided as follows:
The Tribunal will decide this application on the material provided to date, and any supplementary submissions received in accordance with this order. No further hearing will be conducted unless a party makes a request and the Tribunal determines that a further hearing is required.
In his remarks accompanying the interim order, the Tribunal member stated that at the hearing, he had made an assessment that the continuous built form of the 12 dwelling proposal did not meet the purpose of the Neighbourhood Residential Zone in respect of neighbourhood character and, in particular, did not adequately address local housing policy in terms of siting, design detail and landscape setting. The Member recorded that he had expressed the view that some basic changes to the design could address these issues by reducing the number of dwellings to 10 and providing more space between buildings. These changes could also create opportunities to improve open space, landscaping, car parking design and the provision for waste storage. The applicant/plaintiff had agreed that the changes discussed at the hearing would improve the proposed design. The Council continued to oppose the proposed development but undertook to consider any changes. Accordingly, the interim order allowed the applicant/plaintiff to amend the design and provided for the Council to consider the changes.
In the event —
(a) The plaintiff submitted amended plans for a 10 dwelling development along with a swept path analysis of vehicle movements to and from one of the dwellings.
(b) The Council filed comments on the modified plans concerning landscaping, bin location and traffic issues. In relation to the latter, the Council commented that the plaintiff’s swept path analysis was incomplete and that its own assessments showed problems with vehicles entering and exiting the garages in a single movement.
(c) The plaintiff did not respond to the Council’s comments or request a further hearing.
(d) The Tribunal proceeded to determine the plaintiff’s application for review ‘on the papers’.
(e) The Tribunal affirmed the decision of the Council and ordered that a permit not issue.
The plaintiff now challenges the Tribunal’s decision on the ground that, in making its determination, the Tribunal failed to accord him procedural fairness.
Reasons
In its reasons for decision,[1] the Tribunal set out the terms of the interim order and recorded that modified plans had been provided by the plaintiff and that the Council had responded to the modified plans.[2]
[1][2016] VCAT 653 (‘Reasons’).
[2]Reasons [9]. The Council had also informed the Tribunal of the gazettal of Amendment C166 to the Brimbank Planning Scheme on 3 March 2016, which introduced a new schedule to the Neighbourhood Residential Zone, including variations to standards at Clauses 54 and 55, application requirements and decision guidelines. The Reasons set out at [10], [11] and [12] a summary of the relevant changes to Clause 55, the new application requirements and the new decision guidelines.
The Tribunal stated that its decision was based on the submissions by the parties, the plans substituted at the hearing, the modifications to those plans resulting from the interim order and the current provisions of the Planning Scheme. The Tribunal had also inspected the subject land and the surrounding area.[3] Arising from this, the key questions for the Tribunal were:[4]
·Is there planning policy support for a multi-dwelling development on the subject land?
·Does the proposal provide an acceptable design response within the context of the Neighbourhood Residential Zone?
·Will the proposed development result in an acceptable standard of residential amenity?
[3]Reasons [15].
[4]Reasons [16].
The Tribunal found there was State Planning Policy support for a multi-dwelling development of the subject land.[5] However, it answered the questions in the second and third dot points in the negative, concluding that ‘the design does not respond to the site in a way that achieves an acceptable streetscape response or an acceptable standard of internal amenity for future residents’.[6]
[5]Reasons [27].
[6]Reasons [44].
In particular, the Tribunal found that the use of a central driveway to service dwellings on either side failed to achieve an acceptable design response. The combination of driveway and entrances along the central corridor created a ‘gun barrel’ effect that did not make a positive contribution to the streetscape.[7] Moreover, internally, the juxtaposition of entry porches with the driveway was too close and impersonal to give identity and a sense of address to the individual dwellings and the design limited the ability to landscape along the length of the driveway to create an effective distinction between the driveway and the entrances.[8]
[7]Reasons [35].
[8]Reasons [36].
The Tribunal also found internal amenity to be significantly affected by the space constraint within the central access spine. Internal traffic conflict was created by the proximity of the driveway to each dwelling and this issue was not satisfactorily resolved in the amended plans or the subsequent design revision.[9]
[9]Reasons [40].
Furthermore, the Tribunal found the swept path information to be inadequate to demonstrate that unacceptable conflict would not occur between vehicles and pedestrians.[10] It stated that the absence of adequate information in relation to vehicle movement was a serious flaw in the proposal.[11] The Tribunal further stated that the extent of the changes required would effectively transform the proposal. The Tribunal concluded in relation to the interface between the dwellings and the central driveway that the proposed design would result in unacceptable detriment to the amenity of future residents.[12]
[10]Ibid.
[11]Reasons [41].
[12]Reasons [43].
Grounds of appeal
The plaintiff raised two grounds of appeal:
(a)failure to accord procedural fairness to the plaintiff and/or a denial of natural justice; and
(b)taking into account an irrelevant consideration, namely amendment C166 to the Brimbank Planning Scheme gazetted on 3 March 2016.
The second ground of appeal was not pursued in argument. That concession was correctly made, as the Tribunal’s decision to affirm the Council’s decision did not depend in any way on Amendment C166.
The appeal is therefore limited to the ground that the plaintiff had been denied procedural fairness. The particulars to this ground were as follows:
The Tribunal informed the parties that the application was capable of a compromised outcome and made an interim order on 9 February 2016 whereby a revised plan could be lodged which reduced the number of dwellings and made other modifications as directed. Amended plans were lodged and the respondent/defendant filed comments in response to the plans as provided by the interim order. The Tribunal also directed that ‘No further hearing will be conducted unless a party makes a request and the Tribunal determines a further hearing is required’.
The amended plans lodged by the applicant/plaintiff complied with the interim order and the comments filed by the respondent/defendant made recommendations of a minor nature which could have been addressed by permit conditions.
The reasons for decision also included the consideration of Amendment C166 to the Brimbank Planning Scheme at [33] which was inapplicable to the application as well as criticism of the central driveway at [35] which had not been raised beforehand.
In those circumstances the Tribunal had a duty to inform the applicant/plaintiff if it considered there was some other reason which warranted an affirmation of the original decision and which represented a departure from the process adopted by the Tribunal on 9 February 2016.
Submissions
The procedural fairness issue, so the plaintiff contends, arises from the unusual way in which the hearing unfolded, including the comfort that was afforded to the plaintiff by the Tribunal in relation to the way that it proposed to go forward. The plaintiff says that he was lulled into a false sense of security on the basis, in particular, of the Tribunal member’s statement that if he was proposing ‘to do anything drastic’, he would first communicate with the parties.
The statement alleged to be to that effect was made in the course of the Tribunal discussing with the parties the making the interim order. It appears in the transcript as follows:[13]
I’ll communicate – whichever way I’m thinking, I’ll communicate to the parties anyway all right. … If I go through and say, ‘Look, everything that we discussed is really out of context from what I’ve seen and therefore I’m going to proceed to make a decision in the normal way’, I’ll tell you. … If, on the other hand, my site inspection confirms the discussions that have gone on here today then I will issue an interim order with the ability for those changes to be made, for the Council to comment and then I’ll look at it on the papers and we’ll go on from there.
(the ‘communication representation’)
[13]Transcript of Proceeding, Josef Asrat Woldeyes v Brimbank City Council (Victorian Civil & Administrative Tribunal, P1491/2015, Member Dawson, 9 February 2016) 109 (‘Transcript’).
In his affidavit made on 14 July 2016, the plaintiff deposed that at the Tribunal hearing on 9 February 2016, the Tribunal member discussed with the representatives of the parties possible ways of making the project work with a further reduction of the number of dwellings. The Tribunal member suggested that 10 dwellings might be workable, providing that various other aspects of the proposed building works, such as vehicle and swept path movements within the dwelling complex, were appropriately addressed. The member expressed concern about the open living areas between the dwellings and said that a reduction in the number of dwellings would address this concern.[14]
[14]Affidavit of Joseph Asrat Woldeyes sworn 14 July 2016 [7]-[8].
According to the plaintiff, the Tribunal member appeared ‘intent on salvaging the construction project’.[15] The plaintiff formed the view that the project was not so far removed from possible compliance that it should be refused. He gained the impression from what was said and done by the Tribunal member that some fairly straightforward amendments, coupled with the removal of two units, would provide a workable design solution. He anticipated that upon satisfying those matters, and in the absence of any substantive opposition from the Council, the permit would be granted, albeit subject to conditions that minor details be attended to as required by the Council. Upon reading the comments by the Council, he was fortified in his view that the application would be granted with the possible inclusion of some conditions that would require the Council to be satisfied, for example, of a landscaping plan.[16]
[15]Ibid [8].
[16]Ibid [10].
As to whether he could have or should have informed the Tribunal that he wanted to be heard after receiving the Council’s comments, the plaintiff submits that given what transpired at the hearing and the ‘quasi mediated’ process that was undertaken, along with the fact that the Tribunal specifically said that it would communicate with the parties whichever way the member was thinking, the delivery of reasons rejecting the application was a complete surprise. The plaintiff believed that the Council’s comments would be dealt with by the imposition of conditions.
The plaintiff says that the refusal to grant a permit based on problems with the central driveway also involved a breach of procedural fairness because this issue was not previously raised and he was given no opportunity to respond to it.
Analysis
Section 98(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 provides that the Tribunal is bound by the rules of natural justice. What will be necessary in any given case to satisfy the requirements of natural justice cannot be prescribed in advance and its content varies with the circumstances.[17] It requires fairness in all the circumstances.[18]
[17]Herald & Weekly Times v Victorian Civil and Administrative Tribunal [2006] VSCA 7 [41].
[18]O’Rourke v Miller (1985) 156 CLR 342, 353.
The plaintiff’s natural justice/procedural fairness ground is based on the contention that the Tribunal had duty to inform him if it ‘considered there was some other reason which warranted an affirmation of the original decision and which represented a departure from the process adopted by the Tribunal on 9 February 2016.’[19] That duty is said to arise from the communication representation and from the conduct of the hearing more generally.
[19]Proposed Notice of Appeal filed 2 September 2016.
The plaintiff does not allege that he was given no opportunity to be heard. He could have asked for a further hearing following receipt of the Council’s comments. He alleges a breach of procedural fairness based on his expectation that the Tribunal would let him know if it was not satisfied with the modified proposal, presumably so that he could request a hearing and/or further modify the proposal.
In my view, the plaintiff has taken the communication representation out of context. The communication representation was not capable of giving him the comfort or a sense of security about the Tribunal’s intentions for which he now contends.
The passage of the Transcript extracted at paragraph 18 above refers to the site inspection that the Tribunal proposed to undertake. The passage makes it clear that any communication with the parties would follow the Tribunal’s site inspection and that it would happen if the Tribunal decided against making the interim order. In fact, the interim order was made on 12 February 2015, three days after the Tribunal hearing. I infer that it was made after the site inspection, the Tribunal having satisfied itself that the interim order was appropriate, having regard to the site and its context. The Tribunal did not communicate with the parties before determining the application for review because the site visit confirmed ‘the discussions’ that had gone on at the hearing regarding the appropriateness of making the interim order.
The plaintiff was therefore mistaken to allow himself to be lulled into a sense of security as to the outcome of the permit application by the communication representation. The interim order contemplated that the plaintiff would make certain modifications to the proposal and that the Tribunal would consider the application on that basis without a further hearing, unless requested. It did not contemplate that the Tribunal would let the plaintiff know if it had any concerns about any part of the modified proposal before making its determination.
The plaintiff also relies on the unusual ‘quasi-mediated’ nature of the hearing to found his expectation that he would be informed if the Tribunal considered there was some other reason which warranted an affirmation of the original decision.
However, just as neither the communication representation nor the interim order contemplated that the final determination would involve a ‘rubber stamping’ of the modified proposal in the absence of further communication between the Tribunal and the plaintiff, the conduct of the hearing, taken as a whole, did not give rise to an understanding or expectation that the Tribunal would do otherwise than to proceed to consider the merits of the modified proposal and make a decision accordingly.
The inclusion of the requirement for a swept path analysis in the interim order shows that there remained ‘live issues’ in the proceeding and that the approval of the development depended on the Tribunal satisfying itself of a number of matters.
The interim order required the plaintiff to provide a swept path analysis for vehicle movements to and from each garage and visitor car park, the purpose of which was to satisfy the Tribunal about vehicle movements in the driveway. It is not contended that the Tribunal made any kind of representation that the swept path analysis provided by the plaintiff would satisfy the Tribunal about internal vehicle movements in the development. It was open to the Tribunal to affirm the original decision on the ground that the proposed development did not meet the relevant design standards in respect of access ways.[20]
[20]Reasons [7]. The Tribunal expressed concern about the ability for vehicles to meet the design standards at cl 52.06-8, in particular, that access ways ‘have an internal radius of at least 4 metres at changes of direction or intersection or be at least 4.2 metres wide’.
Moreover, it appears that the swept path analysis submitted by the plaintiff, purportedly in compliance with the interim order, did not analyse movement to and from all garages and visitor car parks as required by the interim order and was therefore deficient.
In those circumstances, it can scarcely be contended that a ‘rubber stamping’ of the modified application was contemplated in the absence of a communication from the Tribunal.
I accept that the process adopted by the Tribunal was unusual, and that the terms of paragraph 3 of the interim order were quite prescriptive, lending some weight to the argument that the Tribunal created an expectation that a permit would be granted for the modified development if it complied with the interim order. However, for the reasons I have given, I consider that the Tribunal created no such expectation.
In so finding, I have paid careful attention to the way in which the hearing unfolded, as revealed in the Transcript.
The Tribunal hearing commenced conventionally, with the representatives of the parties presenting their cases in relation to the 12 dwelling proposal. Just before lunch, the Tribunal member said the following:[21]
… after lunch once I’ve heard your submission in relation to the 12 dwellings, I want to have a – in fairness to everyone and being quite frank with all the parties here, I want to have a bit of a discussion about the density of this development in relation to some issues I’ve got with it but I don’t want to enunciate those until I’ve had the benefit of what you’re going to say but I do have some issues with respect to the continuity of the building form.
[21]Transcript 72.
After lunch, the Tribunal member asked the plaintiff’s representative whether there was any scope to reduce the number of dwellings. He said that he hesitated to get involved in the redesign of the proposal but in this case it looked like steps could be taken ‘pretty simply by a condition’. The Tribunal member said:[22]
Well, you know, the issue is that we’re dealing with quite a large site in an area where there has been some significant multi-dwelling development going on so the question is, how do we look at this in the context of – in a way that’s going to start to work? But at the moment it’s just – it’s a bit overcooked I think.
[22]Transcript 95.
There ensued a discussion about how the proposal could be modified. The Council’s representative was asked to comment on what had been discussed and did so ‘on a without prejudice basis’.[23] She said the Council would want to comment on any amended plan. In this context, the Tribunal member said:[24]
The question is that if there was a major redesign involved then clearly it would be better to look at some sort of interim arrangement but if it’s something that can be conditioned simply then that may be acceptable. Now the problem I’ve got is that I haven’t seen the site. I haven’t been out there so I can’t form a view about the acceptability.
[23]Transcript 96.
[24]Transcript 98.
The Tribunal member said that he was very conscious of the size of the site, which was a metropolitan asset in the housing context, and it was in an area where there were plenty of multi-dwelling sites. While he was conscious of the balance between affordability and acceptable design, he did not consider the proposal responded as well as it could. The member said, in substance, that he could make a decision about the 12 dwelling proposal or, if there was an area of agreement about some changes, the proposal could be redrawn and given to the Council for consideration on an interim basis. As there were no objector respondents, provided the changes did not cause any further detriment to neighbours, the process could be carried out ‘within the cycle of the interim order’. He could look at the changes, the parties could make some comments and then he could make his decision on the papers.
The Tribunal member said that he was not talking about ‘wholesale redesign’ but about ‘moving some things around to make the proposal better’.[25] He continued:[26]
But it seems to me that if a dwelling was taken out in here it would create a space of adequate width, and I’m talking, you know, not a metre, I’m talking maybe 3 metres where you get that break in the development and it may provide the opportunity to turn one of these two bedrooms into a 3 bedroom so you have two 3 bedrooms and then seven 2 bedrooms, alright, something like that, so you’ve got 10 dwellings at a density of around a couple of hundred square metres per dwelling. It seems to me that this is getting into an area of acceptability subject to me having a bit of a look at it because I’m very nervous about reaching agreements when I haven’t actually been there.
[25]Transcript 104-5.
[26]Transcript 105-6.
In response, the plaintiff’s representative, referring to the architect, said:[27]
… he’s convinced he can do it with the removal of one unit and rejig that whole area down there but we leave it to you to assess the site and take it from there on the comments you’ve made really, you know. He’s got the ability to design whatever you require really.
[27]Transcript 106.
When asked whether the Council would support the reduced proposal (10 dwellings), the Council’s representative said she could not say that the Council would support it because it was still probably one unit too many.
The Tribunal member then outlined how the matter would proceed. He said he would inspect the site and if the site inspection confirmed the discussion, he would make an interim order based on the draft conditions and request the plaintiff to prepare a revised plan within an agreed time frame. The revised plan would then be given to the Council and the Council would have a period of time in which to comment. If the Council responded that it did not like the proposal at all, then the Tribunal would simply go ahead and make the decision on the papers.
It appears from the process adopted at the hearing that the Tribunal was trying to facilitate the production of a proposal for a multi-dwelling development that was acceptable, having regard to the policies in the Planning Scheme. The zoning of the subject land had changed to prohibit the construction of more than two dwellings on a lot, but the plaintiff’s application was exempt from this restriction under transitional arrangements. Any further development application would, however, be limited to two dwellings per lot. It can be inferred from the Tribunal member’s comments that he was conscious that the application before him was the last opportunity to approve a multi-dwelling development on the site.
The conduct of the hearing and the observations of the Tribunal member would have given the plaintiff confidence that a modified proposal involving 10 dwellings that accorded with the terms of the interim order would be approved. The prescriptive terms of paragraph 3 of the interim order, and the provision for the Tribunal to then decide the matter ‘on the papers’, might also have given confidence that a compliant proposal would be approved.
However, this did not impose a duty on the Tribunal to communicate with the plaintiff if it identified a problem with the proposal. The process put in place by the Tribunal gave the plaintiff the chance to put his best foot forward. In the final analysis, however, having regard to the modified plans and the other material before it, the Tribunal decided that what was proposed was not acceptable.
In my view, it was unrealistic and unreasonable for the plaintiff to expect that any proposal that complied with the terms of paragraph 3 would be approved unless the Tribunal first communicated its concerns to him. Once it received the modified proposal, the Tribunal was charged with assessing it as it would any other. The Tribunal could not by an interim order allowing the modification of a proposal bind itself to approve the modified proposal. In making provision for the Council to respond to the revised proposal and for there to be a further hearing at the request of one or other of the parties, the interim order contemplated that the Tribunal might not approve the modified proposal and might affirm the decision of the Council.
Furthermore, at the hearing, both the Council and the Tribunal expressed concern about vehicle movements in the central driveway. This was plainly an issue that required a satisfactory resolution if the development were to be approved. The plaintiff was required but failed to provide a swept path analysis showing vehicle movements for every garage and visitor car park. In its comments made pursuant to the interim order, the Council pointed out the deficiency in the plaintiff’s swept path analysis, but the plaintiff did not seek to do anything about it. It did not take the opportunity, provided by the interim order, to request a hearing to explain to the Tribunal why its swept path analysis was adequate or why it did not matter if its swept path analysis was inadequate.
Given the inadequacy of the swept path analysis and the Tribunal’s concern about vehicle movements in the central driveway, it was open for the Tribunal to refuse the application on this basis alone. The Tribunal stated that the absence of adequate information in relation to vehicle movements was a serious flaw in the proposal and that the extent of the changes required would effectively transform the proposal. In effect, the Tribunal refused the application on this basis.
It follows that any error by the Tribunal arising from the communication representation or its findings on ‘gun barrel’ effect of the central driveway was of no consequence.
Furthermore, it is entirely unclear what the plaintiff would have said and what difference it would have made, had the Tribunal told him that it did not propose to approve the development based on the modified plans. While the plaintiff might have sought to modify the plans by further reducing the number of dwellings and/or by reconfiguring the dwellings on the site in order to lessen the ‘gun barrel’ effect of the driveway, it is not possible to say what would have made a difference to the Tribunal’s decision. In any event, it was not the role of the Tribunal to engage in ongoing discussions or negotiations with the plaintiff until he put forward a proposal that was acceptable.
In this case, the Tribunal endeavoured to introduce some flexibility into the hearing process to accommodate the fact that no further application for a multi-dwelling development could be made if the current application was refused. The Tribunal made a suggestion as to what might be ‘getting into an area of acceptability’.[28] However, by the interim order, the Tribunal made it clear that following the receipt of the Council’s comments, it would make a decision based on the material before it. It would be ‘business as usual’, albeit that the determination would be made on the papers if no further hearing was requested. The proposal had to satisfy the applicable neighbourhood character policies and those relating to internal amenity. It was for the plaintiff to decide whether the proposal that it ultimately advanced, based on but not limited to the requirements in paragraph 3 of the interim order, adequately addressed the relevant policy considerations.
[28]Transcript 106.
In the circumstances, I am not satisfied that the Tribunal failed to accord procedural fairness to the plaintiff.
Conclusion
The sole proposed ground of appeal is not made out.
The application for leave to appeal is allowed, and the appeal is deemed to have been instituted and heard instanter.
The appeal is dismissed.
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