FEDERAL COURT OF AUSTRALIA
Canberra Tradesmen's Union Club Inc v Minister for Environment, Land & Planning [2000] FCA 203
ADMINISTRATIVE LAW – whether Administrative Appeals Tribunal had power under s 284 of the Land (Planning and Environment) Act 1991 to dispense with preliminary assessment required by s 114 – whether power exercised erroneously – whether proposed use of land for “club” purposes was unlawful.
Land (Planning and Environment) Act 1991 (ACT), s 8, s 113, s 114, s 115, s 116, s 117, s 175(1), s 222(1), s 230, s 230(1), s 231, s 231(1)(a), s 236, s 284, Div 3 of Part 4, Part 6, Sched 3
Administrative Appeals Tribunal Act 1989 (ACT), s 46, s 46(1)
Liquor Act 1975 (ACT), s 33A(2)(ac), s 34(4A)
Administrative Decisions (Judicial Review) Act 1989 (ACT)
Casino Control Act 1988 (ACT)
Gaming Machine Act 1987 (ACT)
Territory Plan, Clause II of Appendix II, Appendix VI
Canberra Tradesmen's Union Club Inc v Commissioner for Land & Planning [1999] FCA 262 considered
Canberra Tradesman's [sic] Union Club Inc v Commissioner for Land and Planning [1998] ACTSC 55 referred
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 considered
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred
Qantas Airways Ltd v Cornwall (1998) 84 FCR 483 referred
Transurban City Link Ltd v Allan [1999] FCA 1723 referred
Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 referred
Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8 referred
Canberra Tradesmen's Union Club Inc v Minister for Environment, Land and Planning (1998) 87 FCR 163 referred
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 cited
Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246 distinguished
IW v City of Perth (1997) 191 CLR 1 referred
Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 cited
O’Sullivan v Farrer (1989) 168 CLR 210 applied
McDougall v Warringah Shire Council (1993) 30 NSWLR 258 cited
Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 (10 February 2000) cited
CANBERRA TRADESMEN'S UNION CLUB INCORPORATED & ORS v THE MINISTER FOR ENVIRONMENT, LAND AND PLANNING & ANOR
A 64 of 1999
MILES, FINN and GYLES JJ
CANBERRA
6 MARCH 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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CANABERRA DISTRICT REGISTRY |
A64 of 1999 |
On Appeal from a single Judge of the Supreme Court
of the Australian Capital Territory
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BETWEEN: |
CANBERRA TRADESMEN'S UNION CLUB INCORPORATED First Appellant
RAYMEL HOLDINGS PTY LIMITED Second Appellant
THE LICENSED CLUBS ASSOCIATION ACT INCORPORATED Third Appellant
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AND: |
THE MINISTER FOR ENVIRONMENT, LAND AND PLANNING First Respondent
REBENTA PTY LIMITED Second Respondent
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JUDGES: |
MILES, FINN and GYLES JJ |
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DATE: |
6 MARCH 2000 |
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PLACE: |
CANBERRA |
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellants pay the respondents’ costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
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IN THE FEDERAL COURT OF AUSTRALIA |
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On Appeal from a single Judge of the Supreme Court
of the Australian Capital Territory
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JUDGES: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
MILES J
1 I agree with Finn J and Gyles J that the appeal should be dismissed. I do not, with respect, detect any inconsistency between the two judgments and I agree with the reasons in both. I would only add that I do not see any cause for casting doubt on the correctness of the decision of the Full Court in the Canberra Casino case, which was decided on a somewhat different factual basis.
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I certify that paragraph numbered 1 is a true copy of the Reasons for Judgment herein of the Honourable Justice Miles. |
Associate:
Dated: 6 March 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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CANABERRA DISTRICT REGISTRY |
A64 of 1999 |
On Appeal from a single Judge of the Supreme Court
of the Australian Capital Territory
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BETWEEN: |
CANBERRA TRADESMEN'S UNION CLUB INCORPORATED First Appellant
RAYMEL HOLDINGS PTY LIMITED Second Appellant
THE LICENSED CLUBS ASSOCIATION ACT INCORPORATED Third Appellant
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AND: |
THE MINISTER FOR ENVIRONMENT, LAND AND PLANNING First Respondent
REBENTA PTY LIMITED Second Respondent
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JUDGES: |
MILES, FINN and GYLES JJ |
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DATE: |
6 MARCH 2000 |
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PLACE: |
CANBERRA |
REASONS FOR JUDGMENT
FINN J:
2 On 30 September 1998 the Administrative Appeals Tribunal ("the Tribunal") of the Australian Capital Territory approved subject to conditions an application by the second respondent Rebenta Pty Limited ("Rebenta") to amend the purpose clause of the Crown lease on which the Canberra Rex Hotel is located so as to add the use as a "club" to the approved purposes. Additionally the Tribunal exercised its power under s 284 of the Land (Planning and Environment) Act 1991 (ACT) ("the Land Act") to dispense with the s 114 requirement of a "preliminary assessment" prior to its decision.
3 The three appellants, Canberra Tradesmen's Union Club Incorporated, Raymel Holdings Pty Limited and the Licensed Clubs Association ACT Incorporated, were objectors to the application before the Tribunal. They appealed unsuccessfully to the Supreme Court of the Australian Capital Territory under s 46 of the Administrative Appeals Tribunal Act 1989 (ACT) ("the AAT Act"). They now appeal to this Court against the decision of Higgins J of the Supreme Court.
4 The two issues of substance raised in this appeal are (i) whether the Tribunal had power under s 284 of the Land Act to dispense with the preliminary assessment required by s 114 and, if it did, whether it nonetheless exercised it erroneously; and (ii) whether the proposed use as a "club" was itself unlawful as s 34(4A) of the Liquor Act 1975 (ACT) prevented the holder of a "general licence" (as Rebenta was) from being granted a club licence where the club's premises were to be situated on the same land as that on which the general licence was in force.
5 These issues were canvassed in some degree by the Full Court of this Court in Canberra Tradesmen's Union Club Inc v Commissioner for Land & Planning [1999] FCA 262. It only emerged during the hearing of the appeal that the correctness of that decision might itself be in issue. The significance of this will become apparent below.
6 Before turning to the issues in the appeal it is necessary to refer in some detail to the statutory setting in which they arise.
The Land Act and the Territory Plan
7 Planning in the ACT is effected under the Act in accordance with the Territory Plan ("the Plan").
8 Section 8 of the Act prescribes that:
"8 Effect of Plan
The Territory, the Executive, a Minister or a Territory authority shall not do any act, or approve the doing of any act, that is inconsistent with the Plan."
9 Where a holder of a Crown lease wishes to add to the uses of the land currently authorised by a lease a development application is made under Part 6 of the Act. For present purposes it is the Minister (as the "relevant authority": see s 222(1)) who is to approve or refuse to approve an application: s 230(1) of the Act. Insofar as presently relevant s 231(1)(a) of the Act provides:
"231 Matters to be considered
(1) Before approving or refusing to approve an application, the relevant authority shall -
(a) consider -
(i) any comments of a person or body to which the application has been referred for comment;
(ii) each objection or other submission the Minister has received in relation to the application which has not been withdrawn;
(iii) a preliminary assessment under Division 2 of Part 4, or a report under section 128; … ."
10 The "preliminary assessment" referred to in sub-paragraph (iii) above is provided for in s 113 and s 114 of the Act. These provide:
"113 Directions
The relevant Minister in relation to a defined decision, or the Environment Minister, may, by written notice to the relevant proponent within 28 days after the day on which the decision that a preliminary assessment be required is made, direct the proponent to prepare a preliminary assessment of the environmental impact of the relevant proposal.
114 Mandatory preliminary assessments
Where a defined decision is of a class prescribed by the Plan, the relevant Minister shall, within the period referred to in section 113, issue a notice under that section in relation to the relevant proposal."
11 Clause II of Appendix II of the Plan, for its part provides:
"II.1 The items listed in the Schedule II.1 below are prescribed classes of defined decisions for the purposes of Section 114 of the Land Act except where one or more of the following applies:
(a) the proposal is an alteration or addition to an existing situation which does not cause significant change in the scale, size or purpose of the existing situation.
(b) the proposal represents a part or a whole of a proposal which has previously been the subject, directly or indirectly, of a previous assessment or has been the subject of another form of investigation which would satisfy the requirements of a preliminary assessment under the Land Act; or
(c) it is intended, by agreement with the Commonwealth, a State or other Territory, that the proposal will be assessed by such an authority."
Among the items listed is:
"Club All proposals within 150 metres of a Residential Land Use Policy area."
"Club" is defined in Appendix VI of the Plan in the following terms:
"Club means the use of land as a meeting place for persons associated, or for a body incorporated, for a social, sporting, athletic, literary, political or other like purpose, and which is a licensed premise under the Liquor Act 1975."
12 Returning to the preliminary assessment process, the matters to be addressed in an assessment are prescribed in Sched 3 of the Act: see s 115. Apart from requiring the provision of information concerning the status, location and description of the proposal ("project") in question and of "Existing Environmental Conditions", it requires the following to be addressed:
"3 POTENTIAL IMPACT OF THE PROJECT ON THE ENVIRONMENT
3.1 On the Physical Environment
3.2 On the Human Environment
3.3 On the Non-human Biological Environment
3.4 Potentially Beneficial Impacts"
13 Once prepared, a preliminary assessment is to be submitted to the relevant Minister: see s 116. The Minister then is to make it available for public inspection under s 117 of the Act. That section provides:
"117 Public inspection
(1) After a preliminary assessment is submitted to the Environment Minister under section 116, he or she shall cause to be published in the Gazette, and in a daily newspaper, a notice stating that copies of the preliminary assessment are available for public inspection during a specified period of not less than 21 days at specified places.
(2) The Environment Minister shall, at the places, and within the period, specified in the notice -
(a) make copies of the preliminary assessment available for public inspection; and
(b) cause a copy of the preliminary assessment to be given to any person on payment by the person of the determined fee.
(3) The Environment Minister shall cause a copy of the preliminary assessment to be sent, without charge, to the Conservation Council of the South-East Region and Canberra (Inc)."
14 Though the Act appears to be silent as to the precise time at which a preliminary assessment is to be made in relation to an application such as the present, it would necessarily be after the application is made but before the Minister's decision.
15 Distinct from the s 114 preliminary assessment is an environmental assessment or inquiry directed or established under s 236. That section provides:
"236 Environmental Assessments and Inquiries
The Minister may -
(a) direct that an Assessment be made; or
(b) establish a panel to conduct an Inquiry;
about any aspect of an application."
Such assessments are conducted in accordance with the provisions of Division 3 of Part 4 of the Land Act.
16 Finally, s 284 of the Act provides:
"284 Power of Administrative Appeals Tribunal and Supreme Court
Where a person appeals, or purports to appeal, under this Act -
(a) to the Administrative Appeals Tribunal; or
(b) against a determination of the Administrative Appeals Tribunal to the Supreme Court;
and it appears to the Tribunal or Court, as the case may be -
(c) that the appeal, or purported appeal, or the decision, or the purported decision, against which the appeal, or purported appeal, has been brought is affected by a failure to comply with a requirement of this Act; and
(d) that to exercise the powers conferred by this section would not be unjust or inequitable;
the Tribunal or Court may order that, subject to any specified conditions, the requirement concerned be dispensed with to the necessary extent."
The Liquor Act
17 The only provision of the Liquor Act to which it is necessary to make reference is s 34(4A). The section itself deals with conditions governing the issue or transfer of club licences. The subsection provides:
"(4A) Where, in respect of premises situated on land held under a lease granted by or in the name of the Commonwealth, there is in force a general licence, the relevant decision maker shall not agree to the issue, or approve the transfer, of a club licence to a club if the premises of the club are situated on that land."
The Genesis of the Present Appeal
(a) The Lack of a Preliminary Assessment
18 When Rebenta's application was made under the Act to vary the lease purpose clause one of the objections made to it was that it required a mandatory preliminary assessment before a decision was made. The proposal for the club in the present case was on a lease within 150 metres of a Residential Land Use Policy area and as such fell within Appendix II of the Plan. The objection was rejected by the Minister's delegate for the following reason (Attachment 1 of the delegate's reasons):
"1 Lack of a Mandatory Preliminary Assessment
An evaluation of the proposal by the Minister's Delegate determined that the proposal fell within Appendix II.1(a) of the Territory Plan, being an alteration or addition to an existing situation which did not cause a significant change in the scale, size or purpose of the existing situation. Therefore the proposal did not require the preparation of a Preliminary Assessment."
19 When the delegate's decision on the application was reviewed by the Tribunal, the need for a preliminary assessment remained an issue. On 21 May 1997 the Tribunal made a "provisional decision" approving the application to add "club" to the permitted uses.
20 In its reasons the Tribunal indicated that a preliminary assessment was required for Rebenta's application and that the delegate made a serious error of judgment in not acceding to the requests for such an assessment. It then addressed the consequence of this:
"16. The question is now what should be done about this matter. We do not need to decide whether the failure to have the preliminary assessment made invalidates the decision to approve the application to vary the lease. The Tribunal has power to deal with the consequences of that failure. If the Tribunal thought that a substantial purpose would be achieved by going through the preliminary assessment procedure, it would be open to the Tribunal to set aside the decision under review and to return the matter to the Department with a direction to have a preliminary assessment made. On the other hand, if the Tribunal came to the conclusion that no effective purpose would be served at this stage by having a preliminary assessment, the Tribunal could deal with the matter under section 284 of the Land Act. This section empowers the Tribunal to excuse the failure to conduct the preliminary assessment if the Tribunal considers that it would not be unjust or inequitable to do so. Having considered the matter, the Tribunal believes this is the course it should follow."
21 It was argued before the Tribunal that the s 284 power did not extend to dispensing with preliminary assessments as the requirement for such an assessment arose from the Plan not the Act and s 284 only extended to the latter. It dealt with this in the following way:
"19. It is clear that the requirement for a preliminary assessment in the case of decisions falling within a class prescribed by the Plan is a requirement of the Act. The Plan itself does not require a preliminary assessment to be made; the function of Appendix II to the Plan is only to set out the classes of decisions on which section 114 operates. Without section 114, there is no mandatory requirement for a preliminary assessment. Consequently, the power conferred by section 284 may be exercised, in a proper case, to excuse the failure to direct the making of a mandatory preliminary assessment."
22 The reasons given for making a s 284 order were in these terms:
"20. The present applicants before the Tribunal are objectors who sought the preliminary assessment. The Local Area Planning Advisory Committee for Area No. 3 did not seek to be a party to the proceedings before the Tribunal or to make an application on its own behalf to review the decision to approve the change of purpose. There has been no suggestion in the proceedings in the Tribunal that the addition of a licensed club to the hotel premises would be an undesirable use of the land. No evidence was brought to the Tribunal to show that it would have an adverse impact upon residents of the area adjacent to the hotel, except in relation to parking. The impact on parking in the area of the proposed development indeed formed the substantive case made by the applicants against the development proposal. This matter having been thoroughly ventilated before the Tribunal, we do not think that any useful purpose would be served by having a preliminary assessment at this stage. In addition, we do not think that it would be unjust or inequitable to dispense with the requirement for a preliminary assessment. Accordingly, the Tribunal will make an order under section 284 of the Land Act dispensing with the requirement for a preliminary assessment. This will have the effect of curing any invalidity that might have arisen from the absence of a preliminary assessment."
23 The "provisional decision" was challenged in an appeal to the Supreme Court and then to this Court. It was unsuccessful for reasons of competence (a "provisional decision" was not a reviewable decision under s 46(1) of the AAT Act). The matter was remitted to the Tribunal for a final determination.
24 On 30 September 1998 the Tribunal gave its decision again approving Rebenta's application subject to conditions. In its reasons of that date (which incorporated by reference its earlier reasons of 21 May 1997), it revisited the s 114/s 284 issue:
"12. The Tribunal faced two questions once it came to the view that the Minister should have directed a preliminary assessment in accordance with section 114. The first was whether to set aside the decision under review and return the matter to the Minister to make an assessment of the environmental impact of the demand for parking or to proceed without the benefit of such an assessment. The second was whether we should deal with the consequences of a possible invalidity of the approval decision due to the failure to direct a preliminary assessment.
13. As to the first of these issues, a decision to return the matter for the making of an assessment would not have amounted to a review of the decision not to direct an assessment under section 114. It would have been an exercise by the Tribunal pursuant to section 44(1) of the Administrative Appeals Tribunal Act 1989 of the power conferred on the Minister by section 236 of the Land Act. Section 236 empowers the Minister to direct the making of an assessment on any aspect of a development application, and this is quite independent of the obligation under section 114 to direct the making of a preliminary assessment in certain cases. For the reasons we have already given, we did not consider that requiring an assessment under section 236 would serve any useful purpose. We thought that the parking issues had been amply ventilated in the Tribunal proceedings. We may have unintentionally created some confusion by referring in paragraph 16 of our earlier reasons by using the term "preliminary assessment" in relation to the option of returning the matter with a direction to have an assessment made. We should have followed more closely the wording of the Land Act in this respect.
14. What the Act calls a "preliminary assessment" is an assessment the content of which is specified in Schedule 3 to the Land Act. The Act calls an "Assessment" what the Minister may direct under section 236. This is an assessment made under division 3 of Part IV of the Act. The form of this assessment is specified by the Minister in giving a direction. Since this is a power conferred on the Minister to be exercised at the Minister's discretion during consideration of a development application it is a power available to the Tribunal pursuant to section 44(1) of the Administrative Appeals Tribunal Act. In either case, the critical issue would have been the environmental impact of the additional parking required by the inclusion of club purposes in the lease.
15. As to the second of these issues, it appeared to us that if the failure to direct an assessment pursuant to section 114 might render the decision before us invalid the matter could be put right by making an order under section 284 of the Land Act. Whether that view be right or wrong, it does not affect our decision on the substantive matters. The section 284 order would become an issue only if our decision, or the decision we have under review, were to be subject to judicial review on the ground of invalidity as a result of the failure to direct an assessment pursuant to section 114. If section 284 does not apply in such a case as the present, any order made by the Tribunal would be of no consequence. If the section does apply, the order made by the Tribunal might save the approval decision from being invalid.
16. Consequently, we consider we should make the section 284 order foreshadowed in our provisional findings."
(b) The Lawfulness of the Permitted Use as a Club
25 In its 21 May 1997 the Tribunal disposed of this issue in the following way:
"50. Nothing we have said in these reasons should be taken as expressing any view on whether the proposed licensed club, located as is intended, within a hotel facility, using common facilities as shown on Exhibit 9 and patronised in the way outlined by Mr Kennedy mainly by hotel guests, satisfies the requirements of Territory law for the licensing of such a club. That is a matter to be considered, at least in the first instance, by other Territory authorities. It is a matter that could return to the Tribunal by another route. It is not in issue in these proceedings."
26 The 30 September 1998 reasons did not add to this.
The Appeal to the Supreme Court
27 The primary judge dismissed the appeal against the Tribunal's decisions. On the issue of lack of a preliminary assessment, his Honour's reasoning was as follows:
(i) The Tribunal was "clearly right" in finding the delegate's decision not to require a preliminary assessment was erroneous.
(ii) The delegate's decision was not itself made a reviewable decision under the Land Act for the purposes of the AAT Act. It could, nonetheless, be relevant to the validity of the final and reviewable decision which ends the process of which it is part: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 338.
(iii) The Tribunal recognised correctly that it was entitled to take cognisance of the delegate's erroneous decision concerning the preliminary assessment and had a discretion to set aside the decision under review in consequence of that error. It did not, however, do so, concluding the error was one that might be overlooked under s 284 of the Land Act.
(iv) Section 114 imposed a requirement that could be dispensed with under s 284. The latter section was not limited to procedural matters.
28 As to the Liquor Act issue, the primary judge:
(a) accepted that as the law then stood it was not lawfully open to grant a liquor or gaming licence to a club situated upon hotel land;
(b) adopted, by analogy, the reasoning of Crispin J in Canberra Tradesman's [sic] Union Club Inc v Commissioner for Land and Planning [1998] ACTSC 55 in relation to a variation authorising use as a club as a permitted use on the Casino's premises, that the use might lawfully be approved even if it required some change to the designation of the existing use of the premises;
(c) applied the decision of the Full Court on appeal from Crispin J that the mere authorisation to use the premises for a licensed club additionally to other permitted uses did not involve an illegality: see Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning, above, at para 32; and
(d) concluded insofar as the actual use of the premises as a licensed club was concerned, if the conditions for grant of a club licence were not met then that use would simply not occur.
The Present Appeal
29 I have noted already the two substantive issues raised on this appeal. Before dealing with them directly it is necessary to refer to two preliminary matters. The first concerns the Tribunal's reasoning and conclusions in relation to s 114 and s 284; the second, the decision of the Full Court in Canberra Tradesmen's Union Club Inc v Commissioner for Land and Planning, above. I will refer to the latter, for convenience, as the Casino case.
(i) The Tribunal's Reasoning
30 In considering the Tribunal's reasons I necessarily start from the standpoint that I am reviewing the reasons of an administrative decision-maker that should not be scrutinised over-zealously to divine some possible inadequacy. The restraint required by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 is of general application in such cases. Nonetheless, it is unfortunate that the Tribunal married together two sets of reasons - those of 21 May 1997 and those of 30 September 1998 - as the reasons for its final decision. As the Tribunal partially acknowledged, the two do not sit happily together.
31 Insofar as the Tribunal's 21 May 1997 reasons were concerned, the Tribunal would seem not only to have reviewed the correctness of the delegate's decision not to require a preliminary assessment, it also addressed what should be done in consequence of the error it discerned. It decided not to set aside the decision under review and to remit the matter to the delegate "with a direction to have a preliminary assessment made". Rather it exercised its power under s 284 to cure any invalidity that might have arisen from the absence of a preliminary assessment.
32 When it came to its 30 September 1998 reasons it changed tack on this matter. It now disavowed engaging in merits review of the delegate's decision, though it held to its view that a s 114 preliminary assessment should have been required. In consequence of that subsisting view it then considered, but in the event rejected, directing an assessment under s 236 of the Land Act: such an assessment would not "serve any useful purpose". But because the Tribunal was of the view that the failure to comply with s 114 might render the decision before it invalid, it made an order under s 284.
33 A consequence of this change is that the reasons given in para 20 of the 21 May reasons (set out above) for not requiring a "preliminary assessment" and for making a s 284 order, were then required to serve somewhat different purposes in the 30 September 1998 reasons. Now they were meant to explain why a s 236 assessment would serve no useful purpose. Whether they were meant as well to continue to supply the reasons for making the s 284 order in relation to the s 114 omission was not adverted to explicitly. I will return to the significance of this below.
34 For the moment I would merely deprecate the practice of adopting the device of incorporating reasons by reference into final reasons for decision where the matter incorporated has not been created to address the precise issue for which it is being incorporated in the final reasons. The incorporated matter may both lose its original force and be productive of potential error.
(ii) The Full Court Decision in the Casino Case
35 The reason for adverting to this decision at the outset is that it became apparent during the hearing before us that it may be decisive of the present appeal unless this Court was to conclude that it was clearly wrong and ought not to be followed: on the comity principle and following previous decisions of the Full Court see eg Qantas Airways Ltd v Cornwall (1998) 84 FCR 483 at 489-490; Transurban City Link Ltd v Allan [1999] FCA 1723.
36 In the Casino case the respondent Commissioner as the "relevant authority" (see Land Act s 222(1)) approved under s 230 of the Land Act an application to vary the permitted uses of the lease on which the Canberra Casino was constructed. As in the present case, one of the proposed uses was to be a "club". Again as in the present case the Commissioner's decision was attacked because of the failure to undertake a s 114 preliminary assessment though in that case in proceedings under the Administrative Decisions (Judicial Review) Act 1989 (ACT) ("the ADJR Act").
37 It was there argued that whether an assessment was required was a "jurisdictional fact" so that if the Commissioner acted without such an assessment where as a matter of fact it was required, he acted in excess of jurisdiction. The absence of that assessment necessarily meant that (a) he infringed s 231(1) of the Land Act (this required the relevant authority before approving or refusing an application to "consider a preliminary assessment under Div 2 of Part IV"); and (b) s 8 of the Act in that by acting without a preliminary assessment, the Commissioner was doing an act that was inconsistent with the Plan.
38 The reason there was no preliminary assessment in that case, as here, was that the Minister's delegate had considered the matter and decided an assessment was not required.
39 The Full Court accepted that the question whether a statutory requirement embodies a jurisdictional fact was a question of construction. Having had regard (a) to the process of construction engaged in by the High Court in Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297 and by the New South Wales Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL [1999] NSWCA 8, and (b) to the fact that the factual question to be decided under the Plan's Sched II.1 for s 114 purposes involved "assessments and value judgments", the Full Court concluded (at [27]):
“In each case the question is one of construction of the legislation. Here, we think it is significant that not only is the question one of opinion or assessment, upon which reasonable minds might differ, but also that the initiator of the process is not the applicant for consent or the consent authority, but the relevant Minister. Secondly, it is relevant that the cases where a preliminary assessment is required are not defined in the Land Act itself but are left to be “prescribed” in the Plan, an instrument of a kind likely to set standards in terms requiring the formation of opinion and the exercise of discretion. It is particularly significant, in our view, that the legislature has chosen to separate, in principle (no doubt in some circumstances the relevant Minister may also be the consent authority, though that is not the case here), the functions of the relevant Minister and consent authority. Where the duty cast on the consent authority by s 231(1) of the Land Act is to consider “a preliminary assessment …" the authority is not required, in our view, to do anything more than consider such an assessment if there is one: in other words it is not for the authority to consider whether a preliminary assessment is required, that obligation being cast not on the authority but on the Minister. That being so, in our view the satisfaction of the criteria set by the Plan is not a jurisdictional fact in relation to the decision to be made by the authority. The proper construction of the provisions, we think, is that the relevant Minister must determine (as the Minister’s delegate did in this case) whether according to the criteria in the Plan, a preliminary assessment is required. If the relevant Minister concludes that, applying par (a) or one of the other exceptions, a preliminary assessment is not required, that decision, in our view, cannot be attacked collaterally in an application for prerogative relief or under the ADJR Act to which the relevant Minister is not a party.” Emphasis added.
40 For present purposes the only issue in this I need consider is whether the proper construction of the legislation is made variable depending upon whether the "consent authority" is the Minister or the Commissioner. In my view it clearly is not, notwithstanding the emphasis the Full Court gave in its reasons above to the possible separation of the Minister's s 114 function from the "consent authority's" s 231 function. Of this separation I
would note that s 230 does no more than give its function to "the relevant authority". Section 222(1) in turn defines "relevant authority" in relation to an application to mean:
"(a) if the Minister has, under subsection 229A(3) or (4), referred the application to the Commissioner for determination and that reference has not been revoked - the Commissioner; or
(b) in any other case - the Minister."
In other words it can in the scheme of the legislation be the same Minister who determines whether in a given instance there will be a separation of functions.
41 While I am thus unable to attribute to the legislative separation of functions the significance the Full Court has, I nonetheless do not disagree with the Court's conclusions on the construction of the legislation for that reason. The real significance of the separation of functions in that case is reflected in the final observation of the Full Court in the passage quoted above: the Minister's s 114 decision could not be attacked collaterally in proceedings for judicial review to which the Minister was not a party. I agree with that observation though I would add that, despite the dictum of Higgins J (concurred in by Heerey and Mansfield JJ) in Canberra Tradesmen's Union Club Inc v Minister for Environment, Land and Planning (1998) 87 FCR 163 at 171, I prefer to leave open the question whether the Minister's determination for s 114 purposes could be capable of challenge in properly constituted proceedings for judicial review.
42 The construction placed by the Full Court on s 114 - and in consequence s 231 - is not one which can be said to be clearly wrong. In saying this I acknowledge that the contrary view to that accepted by the Court on s 114 was, and remains, clearly an arguable one: cf Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5. But if s 114 is to be found to impose a jurisdictional fact it is not, in the circumstances, for this Court to do so.
43 The consequence of this conclusion, for present purposes, is that the Tribunal was not precluded from considering the application before it for want of jurisdiction so to do. The delegate's s 114 decision had been taken; it had not been subject to challenge in judicial review proceedings; and it was not itself reviewable as such by the Tribunal. That decision nonetheless remained part of the factual matrix of which the Tribunal could and did take account. In that sense it took its place in the reasoning of the Tribunal that was "exposed for consideration" - cf Australian Broadcasting Tribunal v Bond, above,at 338 - in this proceeding. As I will indicate below, I do not consider that the Tribunal took inappropriate account of the delegate's decision.
44 Distinct from the s 114 issue, the Full Court in the Casino case also considered the issue of whether approving the purpose variation would involve the authorisation of unlawful activity - in that instance the possible installation in the Casino of gaming machines contrary to express provisions of the Casino Control Act 1988 (ACT). The variation sought was to permit use of the premises as a "club".
45 The Full Court noted that there would be nothing necessarily unlawful about the mere use of part of the premises as a club. But if gaming machines were to be installed "then other things will have to happen". These it described as possibly an amendment to the Casino Control Act or a redesignation of part only of the premises as a Casino, that part not being occupied by the club. The Court went on (at [32]):
"In either case, it would then be necessary for the club to obtain a licence under the Gaming Machine Act; but it could not do so unless one or other of the earlier steps had been taken. In those circumstances, in our view, it is impossible to hold that the decision should be quashed or set aside on the ground that it authorises unlawful acts."
46 The appellant in the present proceeding, while submitting that the Casino case is distinguishable on this issue, has submitted in the alternative that it is wrongly decided and should not be followed. I would reiterate that the primary judge in this matter regarded the Casino case as not distinguishable and therefore to be applied.
Submissions and Conclusions
47 The grounds of appeal can be divided conveniently into two, the one relating to the s 114/s 284 issue; the other to the unlawful use issue.
(i) Section 114/s 284
48 The appellants' case is, first, that the mandatory requirement of s 114 cannot be dispensed with under s 284; and secondly, even if it can, the Tribunal's exercise of its s 284 discretion involved an error of law on its part.
(a) Dispensing with s 114
49 The appellants' submissions are (i) that while it was the s 230 decision that was being reviewed, the antecedent processes and findings leading to it (including the s 114 determination) were exposed for consideration: Bond's case; (ii) the Minister was obliged by s 231 to consider a preliminary assessment where one was objectively required but because of his erroneous s 114 determination no such consideration was given, hence there was a reviewable error attending the s 230 decision; and (iii) the dispensing power contained in s 284 on its proper construction extends only to dispensing with minor procedural and administrative requirements as (a) s 284 has to be construed in the context of, and consistently with, the language and purpose of the Land Act as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, and (b) the scheme of the legislation is such that Parliament could not have intended that the s 284 power extended to dispensing with central and peremptory requirements of the Land Act of which the preliminary assessment requirement (being a catalyst to a process of public consultation) was one.
50 I am unable to agree with these submissions in two crucial respects. First, the Tribunal was only reviewing the delegate's s 230 decision. In reaching its decision it could properly have regard to there not being a s 114 preliminary assessment in circumstances in which it considered such an assessment was required. And this, at least by the time of the 30 September 1998 reasons, is what the Tribunal professed to be doing. Its jurisdiction to consider Rebenta's application was unaffected by the absence of the preliminary assessment. It had no jurisdiction to review the s 114 determination, such not being a "reviewable decision". And that determination had not been challenged successfully in judicial review proceedings. The Tribunal had to do its duty in the state of affairs confronting it. Being conscious of the erroneous s 114 determination, it considered whether a s 236 assessment should be directed but decided in the circumstances that this would serve no useful purpose. In its reasons it made the fact of the erroneous s 114 determination a part of the matrix of considerations to which it had regard and to which it responded. In this respect it did "expose for consideration the reasons which [were] given for the making of the decision and the processes by which it [was] made": Bond's case, above, at 338. But, in my view, the manner in which it treated the absence of a preliminary assessment for the purpose of its making the correct or preferable decision does not betray an appellable error on its part.
51 The appellants' argument seeks indirectly to re-agitate the jurisdictional fact issue lost in the Casino case. They contend that where the same Minister exercises both the s 114 and the s 230 powers, the Minister cannot use his default under s 114 to excuse his s 231 failure to consider the assessment that would have been there but for the default. Because I am not prepared to depart from the view taken in the Casino case of the construction properly to be given s 231, the fortuitous circumstance of the same Minister exercising both powers can be of no operative consequence when the s 230 decision is reviewed by the Tribunal. I again emphasise that judicial review was not sought of the s 114 determination. As indicated below, my conclusion on this submission is sufficient to dispose of this part of this appeal.
52 The second aspect of the appellants' submissions that I am unable to accept relates to the construction sought to be put on s 284. Consistent with the importance now properly attributed to the processes of public information and consultation contained in modern planning legislation, I accept that the s 114 preliminary assessment requirement is one of particular significance in the scheme of the Land Act. I equally acknowledge that a legislature which imposes mandatory requirements of the type enshrined in s 114 would not intend that they could be lightly dispensed with.
53 When one turns to the provisions of s 284 it seems to me that not only does the s 114 requirement fall within the express terms of the section - it is "a requirement of this Act" - but that the conditions that need to be satisfied before the dispensing power is exercised allow for appropriate regard be had to the significance of that requirement within the scheme of the Act. The power can only be exercised if it appears to the Tribunal (inter alia) that it would "not be unjust or inequitable" so to do. In other words the frame of the section itself allows for it to be applied in a way that gives effect to "harmonious goals": Project Blue Sky Inc, above, at 382.
(b) Error in exercising the s 284 power
54 The dispensing power is conditioned (inter alia) on it appearing to the Tribunal that the decision appealed against is affected by a failure to comply with a requirement of the Act. In the present case it so appeared to the Tribunal, it being of the view that a s 114 preliminary assessment should have been, but was not, required and that the failure so to do might render either the decision appealed from or its own decision, invalid. I emphasise "might" because the Tribunal in the event exercised the s 284 power to guard against the contingency of possible invalidity, it acknowledging as well in its 30 September reasons (para 15) that s 284 may not apply in the circumstances in which case its "order … would be of no consequence".
55 For present purposes I am satisfied that a failure to comply with a Land Act requirement that the Tribunal regards as possibly calling into question the validity of a decision is, for s 284 purposes, a failure that "affects" that decision. The issue raised by the appellants is whether the Tribunal's decision to exercise the power was itself improper, either because it failed to take relevant considerations into account or because it misdirected itself.
56 With some reservation for reasons I will note directly, I am persuaded by the view expressed by Gyles J on this aspect of the appellants' case. The cause of my reservation relates to a doubt I have entertained as to the adequacy of the Tribunal's reasons for exercising its s 284 power. That doubt arises in consequence of the incorporation of the 21 May 1997 reasons into the 30 September 1998 reasons but with the new explanation in the 1998 reasons that the conclusion that no useful purpose would be served by having an assessment being made referable, not to a s 114 preliminary assessment, but to a s 236 assessment. Once this change was made it could be said that all that was left explicitly to justify the s 284 decision would appear to be the assertion that it would not be unjust or inequitable to exercise the power. Nonetheless, and in the spirit of Wu Shan Liang, I am prepared to adopt the benign interpretation of the Tribunal's reasons that has commended itself to Gyles J. And as I have indicated, I agree with Gyles J's conclusion that the reasons so construed do not disclose an appellable error.
(ii) Authorising an Unlawful Use
57 At the time the Tribunal made its decision approving the variation so as to make use as a "club" a permitted use of the lease, it was not lawful to grant a liquor licence (and in consequence a gaming machine licence) to a club situated upon the hotel land or upon adjoining land under the same Crown lease, Rebenta holding a general licence in relation to that land. Such are the effects of s 34(4A) of the Liquor Act and of the Gaming Machine Act 1987 (ACT).
58 The short point in the appeal is the claim that it was beyond power and contrary to public policy to approve a use that could not lawfully be made of Rebenta's land.
59 The primary judge considered the circumstances fell within the principle stated by the Full Court in the Casino case and concluded in consequence that the mere authorisation to use the premises for a club as a permitted use itself involved no illegality or approval thereof. His Honour was correct in my view in considering himself bound in the circumstances by the Casino case.
60 When an additional permitted use is added to a lease, that addition does not of itself mean that then and there an actual use can lawfully be made of the premises for that purpose at all or alongside other permitted uses. Where, apart from the Land Act, statute positively regulates the conditions on, or subject to which, a particular actual use can lawfully be made of premises, there can be no objection to having the lease itself include that use as a permitted use notwithstanding that in a given instance it may be difficult, unlikely, or even impossible without a change in the law to satisfy those conditions for such a lawful actual use of the property.
61 There is, in my view, no justification for assuming that Rebenta - or for that matter any other like applicant - will as of course make an actual unlawful use of property because the use happens to be a permitted use. The circumstances are far removed from those when an actual unlawful use is occurring at the time of a planning application: see eg Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246. Yet that assumption of unlawful actual use is required to be made before the appellants' submission even begins to have substance. What the Tribunal did, by varying the permitted uses, was to satisfy a planning precondition necessary to be satisfied before a lawful actual use as a licensed club could occur: see s 175(1) of the Land Act; and cf s 33A(2)(ac) of the Liquor Act. But whether that use would actually occur depended on the satisfaction of the requirements of the Liquor Act. That was a matter between Rebenta and the relevant licensing authorities. It was not a matter in which the Tribunal was obliged to concern itself. The Tribunal was to exercise its s 230 power for its designed ends, and not for any purpose foreign thereto: cf IW v City of Perth (1997) 191 CLR 1 at 49. The Liquor Act, s 34(4A) simply did not address permitted use of leases as such. Rather it presupposed there was an appropriate permitted use: cf s 33A(2)(ac); and so, contrary to the appellants' submission, it did not circumscribe the ends of the s 230 power.
62 I would add that we have been invited to refuse to follow the Casino case. I decline to do so because I am of the view it is by no means clearly wrong.
Conclusion
63 I would dismiss the appeal.
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I certify that paragraphs numbered 2 to 63 are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. |
Associate:
Dated: 6 March 2000
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IN THE FEDERAL COURT OF AUSTRALIA |
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CANABERRA DISTRICT REGISTRY |
A64 of 1999 |
On Appeal from a single Judge of the Supreme Court
of the Australian Capital Territory
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BETWEEN: |
CANBERRA TRADESMEN'S UNION CLUB INCORPORATED First Appellant
RAYMEL HOLDINGS PTY LIMITED Second Appellant
THE LICENSED CLUBS ASSOCIATION ACT INCORPORATED Third Appellant
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AND: |
THE MINISTER FOR ENVIRONMENT, LAND AND PLANNING First Respondent
REBENTA PTY LIMITED Second Respondent
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JUDGES: |
MILES, FINN and GYLES JJ |
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DATE: |
6 MARCH 2000 |
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PLACE: |
CANBERRA |
REASONS FOR JUDGMENT
GYLES J:
64 I have had the advantage of reading the judgment prepared by Finn J in draft. I need not repeat his Honour’s lucid analysis of the issues, nor reproduce the factual history and the legislative provisions. In my view, the learned judge of the Supreme Court was correct in his conclusion and generally in his reasoning to that conclusion.
65 As will appear later, I prefer the appellant’s submission that the Administrative Appeals Tribunal (“the AAT”) and the Supreme Court were correct in taking the view that s 114 of the Land (Planning and Environment) Act 1991 (ACT) (“the Act”) required that there be a preliminary assessment in the present case and that breach of the mandatory provisions of s 114 has the effect that any approval granted thereafter, in the absence of such a preliminary assessment, is invalid. It is convenient to consider the effect of those views, on the assumption that they are correct. They do not necessarily lead to success by the appellant
in the present case. The first question is whether the AAT was entitled to consider the issue at all.
66 In Canberra Tradesmen’s Union Club Inc v Commissioner for Land & Planning [1999] FCA 262, it was held that s 231(1) of the Act only required the decision-maker to consider a preliminary assessment where one existed. If no preliminary assessment did exist, the relevant authority does not infringe s 231(1) by approving an application in its absence, even, presumably, where it was a mandatory requirement of the Act. This is a recent decision of a Full Court which, in my opinion, is correct so far as it goes.
67 What, then, is the position of the decision-maker in circumstances where there is no preliminary assessment? May the decision-maker form a view as to whether any preliminary assessment was required?
68 There is little doubt that the decision-maker is not bound by virtue of s 230 or s 231 to make a decision as to whether the lack of a preliminary assessment would vitiate the application or be a ground for refusal of the application. It does not follow that to do so is prohibited by the statute. See Minister for Aboriginal Affairs v Peko Wallsend Ltd (1986) 162 CLR 24 per Mason J at 39-40.
69 In my opinion, s 231 is not exhaustive as to the matters which may be taken into account in exercising the power granted by s 230(1) (O’Sullivan v Farrer (1989) 168 CLR 210 at 215). Therefore, the test of what considerations are irrelevant is to be judged by considering the discretion granted by s 230 in the context of the statute as a whole. The discretion is confined only by the scope and purposes of the legislation (O’Sullivan v Farrer (supra) at 216). On this basis, I can see no implied prohibition upon the decision-maker taking into consideration whether a decision is prohibited due to an anterior breach of the Act, even though the decision-maker cannot make a binding decision upon the point.
70 The alternative view would require the opponent to bring administrative law proceedings to prohibit the grant of consent no matter how clear the defect may be. If the decision-maker chooses to entertain the issue, a party can always elect to have the Court decide the matter by bringing administrative law proceedings of one sort or another. It is to be borne in mind that the question of what considerations are irrelevant is the same for the AAT on full merits appeal as for the original decision-maker. It will also be borne in mind that there is an appeal from the AAT to the Supreme Court on a question of law. For what it is worth, my own experience suggests that collateral questions of legality are considered on
occasion by planning tribunals and courts. Indeed, that point is made clear by the other arguments advanced in this case.
71 The next issue is whether the order made by the AAT pursuant to s 284 cured the assumed defect. The appellant submits that the first precondition contained in s 284 is not met. That is whether the decision “is affected by a failure to comply with a requirement of this Act”. The failure to comply with s 114 and the other provisions of Div 2 of Pt IV is undoubtedly a failure to comply with a requirement of the Act and, on the assumptions upon which I am considering the issue, would prevent a decision being made, or, if made, would result in invalidity. That certainly “affects” the decision. The only escape from this conclusion is if “a requirement of the Act” in this subsection is read down to mean a requirement of the Act relating to or concerning the making of the decision rather than any anterior or collateral requirement of the Act.
72 It was submitted for the appellant that it should be concluded from the legislative scheme that Parliament did not intend the AAT, upon a review, to have an open hand to rewrite the planning laws, so as to render redundant the requirements which were essential parts of the planning approval process. Rather, it was submitted, s 284 is directed to permitting the AAT to review a decision in an effective manner – untrammelled by minor, procedural or administrative deficiencies (for example, late filing, deficient documentation, etc). Mr Einfeld QC, for the appellant, stressed the important role that Div 2 plays in the scheme of things, relating, as it does, to public consultation.
73 These submissions are attractive, but, in my view, the phrase “a requirement of this Act” cannot be read down in the manner suggested. Whilst giving full effect to the necessity to construe the section consistently with the Act as a whole (Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355) I see nothing in the statute which would enable it to be discerned which requirements of the Act could be taken into account and which not for the purposes of the section. There is no legal touchstone to enable a distinction to be drawn between requirements. Furthermore, I agree with the opinion of the judge below that the fact that the original decision-maker does not share the dispensing power is significant. It can only be exercised by those independent of the executive government, and at a stage where the actual practical implications of the failure to obtain a preliminary assessment can be judged. For a refusal to read down a somewhat similar provision see McDougall v Warringah Shire Council (1993) 30 NSWLR 258.
74 Mr Einfeld QC, for the appellant, also submitted that s 8 of the Act prohibited the AAT (as a Territory authority) from doing or approving any act inconsistent with the Plan. It was submitted that where the proposed club use would effect a significant change from the existing use, as in the present case, dispensation of the mandatory assessment would be prohibited. It was submitted that s 114 in referring to the Plan gives content to the section.
75 In my opinion, s 8 relates to substantive provisions of the Plan, rather than to Appendix 11.1 to the Plan. Put another way, it is s 114, not the Plan, which is not complied with in the present case. I therefore see no application for s 8.
76 It was then submitted that if s 284 did grant to the AAT a discretion to dispense, the exercise of that discretion miscarried. The jurisdiction being exercised by the Supreme Court was not that of judicial review, but, rather, an appeal on a question of law. The question of law proposed to the Supreme Court was “In the alternative, whether the Tribunal’s purported exercise of discretion under s 284 of the Land (Planning & Environment) Act was a valid exercise of discretion.” For relevant purposes, the grounds which were relied upon were as follows:
“c. In the alternative, the Tribunal erred in the exercise of its discretion under Section 284 of the Land (Planning & Environment) Act in that it failed to take into account relevant considerations, namely:-
i. that the variation of purpose approved by the Tribunal contravened the Territory Plan and Section 8(1) of the Land (Planning & Environment) Act 1991;
ii. that the preliminary assessment provided for under the Land (Planning & Environment) Act is a mandatory procedural requirement which cannot be dispensed with where the decision is one of a class prescribed by the Territory Plan;
iii. that the decision to dispense with compliance with the preliminary assessment procedures specified by Section 113 of the Land (Planning & Environment) Act had the effect of prohibiting the Minister from exercising the statutory powers specified in subdivision B of Part IV of the Land (Planning & Environment) Act;
iv. …
v. that the decision to dispense with the requirement for preliminary assessment precluded the requirement for the public consultative process specified in subdivision B of Part IV of the Land (Planning & Environment) Act.
…
e. The Tribunal erred by taking into account irrelevant considerations, namely:
i. a view that it would not “serve any useful purpose” to require compliance with the preliminary assessment provisions of the Land (Planning & Environment) Act 1991;
ii. …”
77 It is necessary to understand what the AAT said about the matter. In its provisional decision, it said the following:
“16. … This section [s 284] empowers the Tribunal to excuse the failure to conduct the preliminary assessment if the Tribunal considers that it would not be unjust or inequitable to do so. Having considered the matter, the Tribunal believes this is the course it should follow.
…
20. The present applicants before the Tribunal are objectors who sought the preliminary assessment. The Local Area Planning Advisory Committee for Area No. 3 did not seek to be a party to the proceedings before the Tribunal or to make an application on its own behalf to review the decision to approve the change of purpose. There has been no suggestion in the proceedings in the Tribunal that the addition of a licensed club to the hotel premises would be an undesirable use of the land. No evidence was brought to the Tribunal to show that it would have an adverse impact upon residents of the area adjacent to the hotel, except in relation to parking. The impact on parking in the area of the proposed development indeed formed the substantive case made by the applicants against the development proposal. This matter having been thoroughly ventilated before the Tribunal, we do not think that any useful purpose would be served by having a preliminary assessment at this stage. In addition, we do not think that it would be unjust or inequitable to dispense with the requirement for a preliminary assessment. Accordingly, the Tribunal will make an order under section 284 of the Land Act dispensing with the requirement for a preliminary assessment. This will have the effect of curing any invalidity that might have arisen from the absence of a preliminary assessment.”
78 The comments by the AAT in its final decision concerning s 236 of the Act muddy the waters somewhat. However, it seems to me fairly plain that the view of the AAT was that whether under s 114 or s 236, the critical issue would have been the environmental impact of the additional parking required by the inclusion of club purposes in the lease (see par 14 of the AAT decision). The AAT went on to say:
“15. As to the second of these issues, it appeared to us that if the failure to direct an assessment pursuant to section 114 might render the decision before us invalid the matter could be put right by making an order under section 284 of the Land Act. Whether that view be right or wrong, it does not affect our decision on the substantive matters. The section 284 order would become an issue only if our decision, or the decision we have under review, were to be subject to judicial review on the ground of invalidity as a result of the failure to direct an assessment pursuant to section 114. If section 284 does not apply in such a case as the present, any order made by the Tribunal would be of no consequence. If the section does apply, the order made by the Tribunal might save the approval decision from being invalid.
16. Consequently, we consider that we should make the section 284 order foreshadowed in our provisional findings.”
79 In my view, par 20 of the provisional decision should be read as a statement of reasons for taking the view that it would not be unjust or inequitable to dispense with the requirement for a preliminary assessment. The words “in addition” are not, in my opinion, intended to indicate that the statutory requirement (which had been noted by the AAT in par 16) was being decided separately and apart from that which had preceded it in the paragraph. In other words, all of par 20 was intended to support the conclusion that no useful purpose would be served by having a preliminary assessment and also to support the view that it would not be unjust or inequitable to dispense with the requirement for a preliminary assessment. Indeed, the conclusion that no useful purpose would be served could be seen as one reason in itself for concluding that it would not be unjust or inequitable to dispense with the requirement. Reasons given by an administrative tribunal are not to be scrutinised with an unduly critical eye (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-2). Brevity in reasons is a virtue rather than a vice, provided what actuated the decision is disclosed. In my opinion, these reasons satisfy that test.
80 Before turning to consider the appellant’s submissions on the point, it is necessary to consider what the judge of the Supreme Court said about it. He was relatively economical. His Honour said:
“48. Nevertheless, the original decision-maker proceeded without it [the preliminary assessment]. The various objectors, including the appellants, had a full opportunity, at least by the time the AAT had conducted its review of that decision, to explore all of the matters which would have been covered by a preliminary assessment. It was certainly open to the AAT to conclude, as it did, that no useful purpose would have been served in sending the matter back to the original decision-maker with a direction that a preliminary assessment be required.
…
52. … Indeed, if s 284 confers a dispensing power on the AAT which extends to the requirements imposed by s 114, it seems to me to have been correctly exercised.”
81 No question was raised on the appeal as to whether this issue properly gave rise to any question of law, either in the Supreme Court or here. I have already remarked that an appeal on a question of law is distinct from proceedings for judicial review, although, of course, the two may overlap.
82 The submission that the AAT failed to take into account relevant matters must fail. The condition to the exercise of the power (on the basis that the decision was affected by failure to comply with the requirement of the Act) was that it should appear to the AAT that to exercise the powers would not be “unjust or inequitable”. The AAT expressly so found. The statutory precondition was met. In those circumstances, s 284 gave to the AAT an unfettered discretion as to whether to make the order or not. The statute itself does not require any other factor to be taken into account. Furthermore, it is, in my opinion, impossible to conclude that any of the matters referred to by the AAT on this issue were impliedly made irrelevant by the statute. The dispensing power is granted by the statute to the AAT in the form of a general discretion. The High Court has consistently stressed that the merits of the exercise of such a discretion are not the province of the courts (most recently in Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5 (10 February 2000) par 43 and 44).
83 I therefore conclude that the judge below was correct in not disturbing the order under s 284 made by the AAT.
84 I should note one aspect of the text of s 284 which was not adverted to during argument. The phrase “it appears to the Tribunal” in s 284 governs subs (c) as well as subs (d). This would be most naturally construed as not requiring an objectively correct decision as to whether the decision is affected by a failure to comply with a requirement of the Act, but, rather, that that circumstance should appear to the AAT. This construction would also have the virtue of commonsense, given that the AAT cannot actually decide the issue. It is unnecessary to pursue the point further in view of my opinion as to the substance of that matter.
85 My conclusion as to the attack by the appellant upon the order made pursuant to s 284 is sufficient to dispose of the appeal. So long as the dispensation is effective, breach of s 114 has no relevance. This would render it unnecessary to express any final view as to the s 114 issue, and in particular the impact of the decision of the Full Court in Canberra Tradesmen’s Union Club Inc v Commissioner for Land & Planning [1999] FCA 262 upon it.
86 The actual ratio of that decision appears to me to be the following:
“If the relevant Minister concludes that, applying paragraph (a) or one of the other exceptions, a preliminary assessment is not required, that decision, in our view, cannot be attacked collaterally in an application for prerogative relief or under the ADJR Act to which the relevant Minister is not a party.”
This issue does not arise in the present case, which, as I have said, is an appeal on a question of law. If it had been part of the ratio of that decision that s 114 is to be construed as if it were conditioned upon the subjective opinion of the Minister rather than a jurisdictional fact, then, in my opinion, the decision would require re-examination in the light of the recent decision of the High Court in Corporation of the City of Enfield v Development Assessment Commission (supra).
87 The question as to whether breach of s 114 leads to invalidity of a subsequent approval pursuant to s 230 is a different question. That result does not follow from the text of s 230 or s 231.
88 However, the scheme of the Act is powerful support to that submission. The question of approval will necessarily arise after the time has elapsed to set in train the process of preliminary assessment pursuant to Div 2 of Pt IV if that were called for. The judge below correctly stressed the importance of the preliminary assessment as the process for involving public consultation. The proper assessment of a proposal may raise issues of concern to members of the public, including, but not limited to, those directly affected by a proposal, which may not have been perceived or properly appreciated in the absence of such an assessment. It also ensures that an appreciation of the issues is widely disseminated. It may well result in persons who have legitimate concerns coming forward. This process has little point if it is not directed to a proper evaluation at the actual point of decision-making. It may do so by raising issues or by causing notice of the proposal and the issues to be disseminated. Adapting somewhat the test in Project Blue Sky Inc v Australian Broadcasting Authority (supra) at 390, in my opinion it can be concluded from the language of the relevant provisions and the scope and object of the statute that Parliament would not have contemplated that a valid decision could be made in the absence of a preliminary assessment where the Act required that assessment to be made. Indeed, in my view, s 231(1) is framed upon the assumption that there will be a preliminary assessment where the Act requires one.
89 The first respondent filed a Notice of Contention to the following effect:
“Take notice that the first Respondent will contend and develop the following argument at the hearing of this matter:
1. That irrespective of the conclusions of fact reached by the Administrative Appeals Tribunal of the Australian Capital Territory (the AAT) that the decision to approve the use of the lease for a club involved a “significant change in the scale, size or purpose of the existing situation” and Higgins J’s view that this was “clearly right”, (para 41) neither conclusion was of any legal consequence as it was not within the jurisdiction of either the AAT or the Supreme Court to review the merits of the Minister’s findings on this question;
2. That in light of the Minister’s finding that there was no “significant change in the scale, size or purpose of the existing situation”, no preliminary assessment was required; and
3. The Minister’s finding that there was no “significant change in the scale, size or purpose of the existing situation”, was not open to review by the AAT.
Dated: 19 November 1999”
90 The second respondent filed a Notice of Contention to the following effect:
“The Second Respondent contends that the Honourable Mr Justice Higgins erred in so far as His Honour considered that the decision of the Administrative Appeals Tribunal (“the Tribunal”) required the exercise of its powers under Section 284 of the Land (Planning and Environment Act) 1991 (“Land Act”) as a result of its findings, the Minister was “wrong” or made a “serious error of judgment” in relation to requiring a preliminary assessment. The Second Respondent contends that these findings by the Tribunal, were of no effect because:
a) The Tribunal had no power under Section 44 of the Administrative Appeals Tribunal Act 1989 (“AAT Act”) to review the merits of the decision under Section 114;
b) The Tribunal did not find that the Minister’s decision was unlawful or that the decision under review could not have lawfully been made; and
c) The Tribunal decided not to set the decision aside and require an assessment pursuant to Section 236 of the Land Act.
Dated: 15 November 1999”
91 These contentions, and the argument which was presented in support of them by each of the respondents, proceed upon the footing that s 114 provided a decision-making role for the Minister (or the delegate of the Minister) in forming a subjective view as to whether or not the decision was of a class prescribed by the Plan. In other words, the statute provided for an operative decision by the Minister. On this footing, it is then argued that, obviously enough, neither the decision-maker pursuant to s 230, nor the AAT on appeal, have any role in reviewing or setting aside decisions of the Minister.
92 The first step is very adventurous, to say the least, because, far from giving to the Minister any subjective opinion-making or decision-making role, the section provides for a mandatory duty.
93 The second step is also misconceived. For the AAT to consider whether the Act has been complied with in dealing with the application is not to review a decision in the sense of entering upon a process which could end with the formal setting aside of the decision. As I have said earlier, whilst the decision-maker and the AAT are not bound to give consideration to the issue, they are each entitled to do so when exercising the wide discretion which s 230 provides. The proceedings are not in any sense an administrative law challenge to a Ministerial decision. If the decision-maker or the AAT is wrong in its assessment of the legal position, then that can be corrected by appropriate proceedings.
94 The fact that, in practice, the Minister, or someone on the Minister’s behalf, has to decide whether to press the button does not convert a statutory duty into a subjective decision. The AAT was merely giving its attention to one factor which it regarded as relevant for the exercise of the discretion which it was exercising.
95 In my opinion, the Notices of Contention should fail, although my view about the application of s 284 makes a decision on the point strictly unnecessary.
96 Insofar as the appellant challenges the way in which the issues of parking and illegality were dealt with below, there is nothing I wish to add to the opinion of Finn J.
97 I would dismiss the appeal and order that the appellant pay the respondent’s costs.
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I certify that paragraphs numbered 64 to 97 are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. |
Associate:
Dated: 6 March 2000
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Counsel for the 1st, 2nd and 3rd appellants: |
Mr M L D Einfeld QC with Mr I M Neil |
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Solicitor for the 1st, 2nd and 3rd appellants: |
Gary Robb & Associates |
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Counsel for the first respondent: |
Mr P Walker |
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Solicitor for the first respondent: |
ACT Government Solicitor |
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Counsel for the second respondent: |
Mr F J Purnell SC with Mr D Mossop |
|
Solicitor for the second respondent: |
Meyer Clapham |
|
Date of hearing: |
19 November 1999 |
|
Date of judgment: |
6 March 2000 |
