Gojko and Frank Dosen v Ramon and Noreen Baxter and Department of Environment Land and Planning (Act Lease Administration) [1996] ACTSC 61 (14 June 1996)

SUPREME COURT OF THE ACT

GOJKO and FRANK DOSEN v. RAMON and NOREEN BAXTER and DEPARTMENT OF ENVIRONMENT
LAND AND PLANNING (ACT LEASE ADMINISTRATION)
No. SCA51 of 1995
Number of pages - 7
Building and Construction

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MILES CJ

CATCHWORDS

Building and Construction - town planning - Land (Planning and Environment) Act 1991 - application for approval of variation of purposes clause of lease - approval by Minister's delegate to allow three dwellings on land - application for review by Land and Planning Appeals Board - decision of Appeals Board to vary approval to allow two dwellings on land - appeal to Supreme Court on questions of law - whether Appeals Board denied natural justice to appellant - it did not - whether Appeals Board entitled to treat material before it as evidentiary - it was - undesirability of Court having to consider documentary and other material before Appeals Board and transcript of hearing before Appeals Board where no appeal on merits.

Land (Planning and Environment) Act 1991

Scott and Others v. Brown and Others (unreported, Supreme Court of the ACT, 14 June 1996)

HEARING

CANBERRA, 2 November 1995
14:6:1996

Counsel for the appellants: Mr. R.J. Arthur

Solicitors for the appellants: Romano and Co.

Counsel for the first respondents: Mr. R. Refshauge

Solicitors for the first respondents: Deacons Graham and James

(formerly Sly and Weigall)

Counsel for the second respondent: Mr. R. Refshauge

Solicitors for the second respondent: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellants pay the costs of the appeal of the first
respondents, Ramon and Noreen Baxter.
3. There be no order as to costs in the case of the second respondent,
the Department of the Environment Land and Planning (ACT Lease
Administration).

DECISION

MILES CJ This is an appeal from a decision of the Land and Planning Appeals Board (the Appeals Board) established under s.282B of the Land (Planning and Environment) Act 1991 (the Land Act). The appeal is brought on a question of law pursuant to s.282ZI of the Land Act.

2. Informality is paramount in proceedings before the Appeals Board. Such informality is not always conducive to the delineation, formulation and resolution of the question of law on which the appeal is brought.

3. The history of the proceedings giving rise to the appeal is as follows:

1. On 6 July 1994 application in writing was made by F. Dosen to vary
the purpose clause of a lease on land at Section 13 Block 10 Chifley
known as 20 Carslaw Street, Chifley. The application described the
proposal as "variation to Crown lease (3 houses with two new units) -
to vary lease to allow an increase in the number of residential units
permitted on the site from one to three in total".
The lease in question was dated 23 April 1969. The purpose clause of
the lease was in these terms:
"To use the said land for residential purposes only".
There is a threshold question why it was considered necessary to vary
the purpose clause in the lease for the proposal stated. If there is
a reason for regarding the proposal to use the land for three
residential units as inconsistent with the purpose clause that the
land be used for residential purposes only, I was not told of that
reason. I am bound to state that the whole exercise, commencing with
the application for variation of the purposes clause and continuing
until the present appeal, appears to have been unnecessary.
2. A decision granting the application subject to conditions was made
on 31 January 1995 by Megan Douglas, Manager, Lease Administration
Branch, Department of the Environment and Land Planning, Delegate of
the Minister for the Environment, Land and Planning, for the purposes
of Parts V and VI of the Land Act.
Amongst the conditions of approval was the following:
"That a maximum of three units will be permitted."
It will be seen that the decision is not easily reconciled with the
application to vary the purpose clause of the lease. The purpose
clause did not limit the number of residential units that might be
permitted. The decision imposed a limit of three residential units
and only in that sense can it be seen as a decision to allow a
variation of the purpose clause, and it was essentially a variation to
impose a limit that did not previously exist.

3. On 3 March 1995 an application was made by Ramon James Baxter and
Noreen Margaret Baxter for a review of the decision of the delegate
under sub-para.275(1)(a)(v). The reasons for requesting the review
were set out at length in letters attached to the application, notably
a letter from them to the Registrar of the Appeals Board dated
24 February 1995 in which they referred to their earlier objection to
the application for variation of the lease based on matters relating
to traffic hazard, garbage collection and traffic noise.
4. On 18 April 1995 the Appeals Board made an order under s.280 of the
Lands Act whereby Gojko and Frank Dosen (who were apparently regarded
as the original applicants for variation of the lease) were "made a
party to the above proceedings", that is to the application for
review.
5. On 10 May 1995 the Appeals Board conducted a hearing at which
various people were present, including "Frank" (Dosen), Noreen Baxter
and somebody called "George" (Dosen).
6. On 31 May 1995 the Appeals Board gave its decision in writing
pursuant to s.282ZG of the Land Act.
The decision noted that the Appeals Board had before it an application
relating to "a proposal to vary the lease purpose clause from one to
three residential units". The decision continued as follows:
"Findings
Upon reading all submissions, inspecting the subject lease and hearing
evidence from the parties, the Board hereby determines that the
decision under review be varied as follows:
Condition (1) is amended to permit maximum of two units on the land.
Claims by parties
(Not reproduced)

Statement of reasons
The reasons for the above findings including those on material
questions of fact are:
a) the application relates to a controlled activity for the purposes
of the Land Act and was subject to the provisions of Part VI of the
Act,
b) the provisions of Part VI of the Land Act had been complied with,
c) the concurring authorities and other agencies from whom comment
had been sought by the Lease Administration Branch, had, in the
Board's view, agreed to the approval of the proposal owing to its
compliance generally with the Territory Plan,
d) the Board, however, found that despite the reports from the
Traffic Investigations Unit, Department of Urban Services, the traffic
noise which would be generated in the street by vehicles attending
three units on the block and using a single lane driveway which is
incapable of being widened to dual lane, would have adverse effects on
the amenity of nearby residents,
e) the Board also found that although Carslaw Street, in the opinion
of the Traffic Investigations Unit, does not generate high traffic
volumes, the safety issues associated with the sharp bend in the
street, on-street parking and vehicle entering and leaving a single
driveway to the proposed three units would be unacceptable."
7. On 30 June 1995 Gojko and Frank Dosen lodged an appeal to this
Court against the whole of the decision of the Appeals Board. It was
common ground at the hearing of the appeal, however, that what the
appeal intended to challenge was that part of the decision of the
Appeals Board which had the effect of reducing the maximum number of
residential units permitted on the land from three to two.
The grounds of appeal set out in the Notice of Appeal are as follows:
"1) That the Land and Planning Appeals Board (the Board) erred in law
in that it failed to comply with the requirements of s.282ZG(5) of the
Land (Planning and Environment) (Amendment) Act (No. 3) (1993).
2) The Board's decision is not supported by the evidence and/or facts
presented to it and is therefore incapable of being maintained as a
matter of law.

3) If the Board's decision is capable of being maintained then that
decision fails to give reasons or the material facts upon which the
decision is based or to identify the evidence as other material upon
which those findings were based.
4) The Board failed to give appropriate weight to the expert evidence
and took upon itself to exclude or qualify the evidence provided.
5) The Board's decision to vary the Minister's approval was arbitrary
and beyond the power vested in it pursuant to sub-s.282ZG(1) of the
Act."
8. Amongst the orders sought on the appeal is an order that the
approval and decision of the Minister of 31 January 1995 be affirmed.
The provisions of sub-s.282ZG(5) of the Land Act, relied on in ground
1 of the appeal and relevant to the other grounds, are as follows:
"(5) Where the Appeals Board gives its decision in a proceeding in
writing it shall give its reasons for its decision including its
findings on material questions of fact and a reference to the evidence
or other material on which those findings were based."

4. It is important to realise that in considering the decision of the Appeals Board it is not to be read as if it were the judgment of a court. Allowance must be made for the composition of the Appeals Board and the sorts of issues it had to consider. What appears under the heading "Findings" does not constitute findings at all but the decision based on the findings. I think that paragraphs (d) and (e) of the Appeals Board's Statement of reasons are clearly statements of factual findings, that (c) is also a statement of factual findings and that (a) and (b) are findings of mixed fact and law. As to (d), a finding that traffic noise could have adverse effects on the amenity of nearby residents, that is a finding relevant to the question whether the lease should restrict the purposes of the lease to a maximum number of residential units and, if so, what that number should be. So too is (e), in my view, a relevant finding that the use of a single driveway for access to three residential units was unacceptable having regard to safety issues.

5. There is the further question that whether the reasons include a reference to the evidence or other material on which the factual findings are based.

6. The decision recites that the Board has considered the documentary evidence, namely an application for review lodged by the applicants and a submission from the ACT Lease Administration Branch. These are copious documents and in themselves contain a substantial amount of evidentiary material. There is also some evidentiary material referred to in the Appeals Board's decision under the heading "Claims by Parties", particularly with regard to the claim by the present appellants which was made by way of "oral evidence". The Appeals Board was of course not bound by the rules of evidence and it was entitled to use its own collective knowledge and experience in relation to the effect of likely traffic on noise levels and on safety issues, particularly as the members of the Appeals Board had visited the site and, not being bound by the rules of evidence, were entitled to rely upon their own observations.

7. The composition of the Appeals Board is of people who do not necessarily have any experience in planning issues or issues of law, despite the likelihood that issues of the former kind arise inevitably and issues of the latter kind arise from time to time in applications for review that come before the Appeals Board. It is consistent with the general approach of the Land Act that it recognizes that the decision under review by the Appeals Board is either that of the Minister (who is ultimately responsible for the discharge of his or her duties to the electorate but who acts presumably on advice of an expert kind) or it is the decision of the delegate of the Minister (who is presumably a person of expertise and experience in the relevant area). The review function is cast upon the Appeals Board (something of a misnomer) which stands in the shoes of the original decision maker, that is the Minister or delegate, with all the functions, powers and discretions of the original decision maker: sub-s.282ZG(1). Matters of law when arising in a proceeding may be referred by the Appeals Board to the Supreme Court: sub-s.282ZK.

8. The fact that lawyers are discouraged, if not prohibited, from appearing before the Appeals Board reflects a policy that the power under s.282ZK should be readily exercised.

9. The Appeals Board is to conduct its proceedings with maximum informality and expedition and lack of technicality. Its procedure is entirely within its discretion: s.282X. It is to endeavour to give its decision in a proceeding within five days after completion of the hearing: sub-s.282ZG(2).

10. The function of this Court is to determine any question of law that arises in an appeal from the Appeals Board. Some parties or persons affected by applications to the Appeals Board may find its proceedings and decisions unsatisfactory and difficult to understand, but it is not for this Court on an appeal to try to lay down a regime of procedures which will constrain the Appeals Board to act otherwise than in accordance with its powers and duties under the Land Act. The concept of procedural fairness varies according to the type of tribunal, the type and gravity of decisions that the tribunal makes, but above all, upon what can be gleaned from the legislation which establishes the tribunal. The informal lay tribunal established under the Land Act in order to review ministerial decisions in relation to environmental planning (in this case in relation to the variation of the purposes clause of a lease) is clearly intended, in my view, to give the Appeals Board extraordinary freedom in relation to the conduct of its proceedings, and the expression of its determination without unfairness to any of the parties before it. It has no power to receive evidence in the ordinary way of hearing witnesses on oath or affirmation. The Act allows it, in my view, to treat as evidence anything that comes before it, whether by way of writing, inspection or oral presentation, so long as such material is capable of having some probative effect. I also think that the Act is intended to allow the Appeals Board to draw upon its own pool of experience in relation to the infinite diversity of issues that arise on matters of environmental planning. In a sense it acts as the community's watchdog on ministerial or executive decisions.

11. In my view, it was clearly intended that the Appeals Board conduct a hearing at which all persons who have formally indicated their interest be given reasonable opportunity to put their case. It was submitted by Mr. Arthur, on behalf of the appellants, that the Appeals Board had no power to consider matters of siting and design. As I have pointed out in Scott and Others v. Brown and Others (unreported, 14 June 1996), design and siting issues may be considered relevant by the Appeals Board in an application relating to variation of a lease and if the Appeals Board chooses to take such issues into consideration, it is not for this Court to say that the Appeals Board is wrong in law in this regard.

12. The Board must publish its reasons as required by sub-s.282ZG(5), including, somewhere in the reasons, the findings on material questions of fact. But so long as those findings can be located in the reasons, their sufficiency or persuasiveness cannot be impugned on appeal to this Court. Similarly, the reasons must include reference to the evidence or other material on which the findings were based. Whether the evidence or other material is sufficient to justify the findings also cannot be impugned in this Court. The requirement is for reference to the evidence or other material, not for dissection or discussion and not for an explanation of the link between the evidence and the findings.

13. Appeals to the Court relying upon the ground of unfairness in the conduct of the proceedings by the Appeals Board are somewhat unsatisfactory. Until recent years and the remarkable growth of the scope of judicial review of administrative decisions, it could not have been contemplated that such appeals raised a ground of law at all. However, the present position is that if there is a submission that the Appeals Board failed to give the appellant reasonable opportunity to present a case or that there was no evidentiary material to support the Appeals Board's decision, then those are questions of law and the Court must deal with them.

14. It is desirable to say something about the Court's role in such matters. The Appeals Board appears to keep rigorously to its statutory mandate to conduct the proceedings with maximum informality. The result is that any transcript of what people say in proceedings before it which are recorded may read in part more like the exchanges of persons present at a meeting rather than participants at a hearing in which the parties put forward their respective cases in some form of controlled order. At times the transcript may become simply incomprehensible. There are elements of that in the present case.

15. Furthermore, the evidentiary material consists not only of what is presented orally to the Appeals Board but also of all the documentation that has been before the Minister, which in turn appears to include all the documentation passing between the Minister and the concurring authorities and between the Minister and the parties. Insofar as the parties are permitted, apparently without restriction, to lodge written submissions, generally with voluminous annexures, both to the Minister and to the Appeals Board, the result is a very large amount of documentation indeed. All this written material is to be sent by the Registrar of the Appeals Board to the court (s.282ZL), for what purpose it is not clear. The unfortunate result is, however, that on an appeal which purports to raise a question of law relating to fairness or the absence of evidentiary material before the Appeals Board, the Court is faced with the task of appraising itself with everything that was said to the Appeals Board and everything that appears in the documentation, or at least of deciding how far it needs to go in this regard. This is a time-consuming and costly exercise and would appear to be in the face of the intention to make appeals in planning matters simple, quick and inexpensive. Nevertheless, that is the effect of the Act as far as appeals are concerned.

16. However, I do not think that it is necessary for the Court in every such appeal to have to reiterate all these matters relating to the Act itself nor to digress upon the general principles of administrative law. In this regard much of what I said in another decision handed down on this day applies to the present case: see Scott v. Brown.

17. The appeal is dismissed. The appellants are to pay the costs of the appeal of the first respondents Ramon and Noreen Baxter. Insofar as the Department of the Environment Land and Planning (ACT Lease Administration) is a respondent to the appeal, no order is made as to its costs.