Irwin, Karl v Meander Valley Council

• Jurisdiction: Tasmania
• Judge: Evans J,Tennent J,Porter J
• Judgment Date: 17 December 2008
• Court: Supreme Court of Tasmania
• Docket Number: 767/2007
• Date: 17 December 2008

[2008] TASSC 82

SUPREME COURT OF TASMANIA (FULL COURT)

Evans, Tennent and Porter JJ

767/2007

Irwin, Karl

Hayward, John

and

Meander Valley Council

Land Use Planning and Approvals Act 1993 (Tas), s25.

Vanmeld Pty Ltd v Fairfield City Council (1999) 46 NSWLR 78 , referred to.

Aust Dig Administrative Law [1059]

Local Government Act 1993 (Tas), ss48 and 56.

R v West Coast Council; ex parte Strahan Motor Inn (1995) 4 Tas R 411 ; R v Barnsley Licensing Justices [1960] 2 QB 167; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, referred to.

Aust Dig Administrative Law [1072]

Administrative Law — Judicial review — Grounds of review — Procedural fairness — Hearing — Notice to persons affected — Sufficiency of complying with statutory requirements.

Administrative Law — Judicial review — Grounds of review — Procedural fairness — Bias — Personal or pecuniary interest — Whether statute excludes operation of common law principles.

REASONS FOR JUDGMENT

FULL COURT

Evans J

1 On 16 January 2007 the Meander Valley Council granted two planning permits to Gerald Richards permitting forestry on two areas of land at Mole Creek. The appellants, Karl Irwin and John Hayward, and others, had made representations to the Council against the grant of the permits. Following the grants, the appellants, by an originating application, applied for a review of the Council's decisions under theJudicial Review Act 2000. The originating application was dismissed on 22 October 2007, see Irwin v Meander Valley Council [2007] TASSC 79. The appellants appeal against that dismissal. They contend that the learned trial judge erred in finding:

• • That those aspects of the Meander Valley Planning Scheme that make forestry on rural land a permitted use were valid.

• • That the Council's decisions were not invalid because one of the councillors who voted for them may have derived a pecuniary benefit from the outcome.

• • That the Council's decisions were not an improper exercise of power.

Are the Scheme's provisions as to forestry invalid?

2 The appellants contend that the provisions of the Scheme that make forestry on rural land a permitted use are invalid. The Scheme was made pursuant to theLand Use Planning and Approvals Act 1993 (LUPA). The learned trial judge summarised the legislative and factual background to this issue in pars7 —9 of his decision. Save for an observation which I have underlined in par9, that the Panel's determination that the draft scheme should be modified was ‘Consistent with the representations’, the accuracy of the paragraphs has not been challenged. They are as follows:

“7 On 18 December 1995, the council fixed its common seal to the Meander Valley Council Draft Planning Scheme 1995. On 23 December 1995 it advertised publicly that the Land Use Planning Review Panel, established under LUPA, s8, had resolved to certify the draft scheme under s24(2)(a), and advised that a copy of the draft Scheme might be inspected for the next two months and that representations could be made concerning it on or before 23 February 1996. It did so in accordance with s25. Under s26(1), members of the public could submit representations in relation to the draft planning scheme. Under s26(2), the council had to report to the Panel within three months of the expiry of the exhibition period, concerning the representations so received, along with a statement of its opinion concerning the merits of the representations.

8 Under s27, the Panel was required to consider all matters and to hold a hearing in relation to each representation. Following that, under s28(1), the Panel was authorised to require that the draft planning scheme be modified, to reject it or to direct that a specified part of it be done again. Under s29(1) where, after consideration of a draft planning scheme (including one required to be modified or to have parts substituted), the Panel was satisfied that it was in order, the Panel was required, subject to the approval of the Minister, to give its final approval to the draft planning scheme, and under subs(3), “notwithstanding anyfailure to comply with a procedural provision of this Part, the planning scheme comes into operation on such date as is specified by the Panel …”.

9 One of the provisions in the draft planning scheme was that forestry in the Rural zone was a discretionary use. There was also a Forestry zone in which forestry was a discretionary use. The Panel considered 278 representations that had been made concerning the draft planning scheme. A series of public hearings were conducted by it. They extended over 40 hearing days between 6 November 1996 and 2 July 1997. On 16 April 1997, the panel conducted a hearing of representations by North Forest Products concerning provisions for forestry; Forest Protection Society, Meander Resource Management Group and Liffey District Resource Management Group concerning use and development provisions for the Rural and Forestry zones; and Forest Practices Board concerning the application of the Forest Practices Code.Consistent with the representations, the Panel determined that the draft scheme should be modified by (inter alia) deleting the Forestry zone; defining forestry as establishing, managing or harvesting trees; and classifying forestry as a discretionary use in the Open Space zone and a permitted use in the Rural and Utility Services zones. On 3 November 1997, after those modifications had been made to the draft planning scheme, along with many others, the Panel acted pursuant to s29 by giving its final approval to the draft planning scheme and specified that the Scheme would come into operation on 8 November 1997, which it did.’

3 The appellants contend that the learned trial judge's observation that the Panel's determination that the draft scheme should be modified as to forestry was ‘Consistent with the representations’ is not correct. Although the accuracy of the observation is inconsequential in terms of the outcome of the appeal, I will address the appellants' contention. The Panel had received five representations that had a bearing on forestry. On 16 April 1997, the Panel conducted a hearing in relation to those representations and thereafter it determined that the draft scheme should be modified as detailed in relation to forestry. The modifications are not strictly consistent with each of the representations. It would be more accurate to say that the modifications are consistent with the decision made by the Panel after hearing the representations. As I have said, nothing turns on the accuracy of the learned trial judge's observation.

4 By their originating application, the appellants initially contended that the provisions in the Scheme that made forestry a permissive use in the rural zone were invalid because they ‘were never exhibited for public comment and thereby promulgated in breach of’ LUPA. That ground was abandoned before the learned trial judge as the evidence established that the requirements of LUPA as to exhibiting and advertising the draft scheme had been complied with. The ground was amended at trial so as to contend that the relevant provisions in the Scheme were invalid because they ‘were never exhibited for public comment and thereby denied the applicants natural justice’. The amended ground relies on the common law to impose an obligation to exhibit the changed provisions as to forestry for public comment and contends that the failure to do so denied the appellants natural justice.

5 The Scheme is a form of delegated legislation. Ordinarily those affected by delegated legislation have no entitlement to be consulted on proposed legislation or to be heard in relation to it. This is illustrated byBates v Lord Hailsham [1972] 1 WLR 1373, a case that involved the delegated legislative powers of a committee to make orders relating to solicitors' remuneration. A solicitor applied to the court to restrain the committee from making an order changing the basis of charging for conveyancing on the ground that the committee was obliged to allow more time for consultation and representations before it made orders. At 1378, Megarry J observed:

‘Let me accept that in the sphere of the so-called quasi-judicial the rules of natural justice run, and that in the administrative or executive field there is a general duty of fairness. Nevertheless, these considerations do not seem to me to affect the process of legislation, whether primary or delegated. Many of those affected by delegatedlegislation, and affected very substantially, are never consulted in the process of enacting that legislation; and yet they have no remedy. Of course, the informal consultation of representative bodies by the legislative authority is a commonplace; but although a few statutes have specifically provided for a general process of publishing draft delegated legislation and considering objections …, I do not know of any implied right to be consulted or make objections, or any principle upon which the courts may enjoin the legislative process at the suit of those who contend that insufficient time for consultation and consideration has been given.’

The above should not be taken to mean that there is no common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which directly and immediately affect the rights, interests and legitimate expectations of individuals other than as members of the public or a class of the public. However, where such a decision is one for which provision is made by statute, the application and content of the doctrine of natural justice, or the duty to act fairly, depends to a large extent on the construction of the statute, seeKioa v West (1985) 159 CLR 550, Mason J at 584. In the same case at 633, Deane J said:

‘The precise content of the requirements of procedural fairness which must be observed...