Challenges to tribunal determinations on the ground of failure to consider relevant matters require factual establishment of that failure, not surmise; the absence of reference to contested matters in a determination that is not a statement of reasons does not, without more, support such an inference.
Later decisions that cite Kentucky Fried Chicken Pty Ltd v Gantidis
KENTUCKY FRIED CHICKEN PTY. LTD. v. GANTIDIS [1979] HCA 20; (1979) 140 CLR 675
Town Planning (Vict.)
High Court of Australia
Barwick C.J.(1), Gibbs(2), Stephen(3), Mason(4) and Aickin(5) JJ.
CATCHWORDS
Town Planning (Vict.) - Regulation of land use - Permit to use land for new purpose - Appeal against decision to grant permit - Town Planning Appeals Tribunal - Tribunal required to state reasons if requested by party - No request - Appeal disallowed - Determination - Failure to refer to main grounds of appeal - Whether error of law - Permissible inferences - Whether determination a statement of reasons - Discretionary powers - To be exercised for orderly and proper planning of zone - Effect of proposed use on present shopping facilities - Town and Country Planning Act 1961 (Vict.), s. 22 (2).
HEARING
Melbourne, 1979, February 27; May 1. 1:5:1979DECISION
May 1.2. The appellant conducts retail outlets for the sale of fried chicken. It sought of the Council of the City of Williamstown ("the council"), in the State of Victoria, a permit to use land at 450 Melbourne Road, Newport ("the premises") for the purposes of "take-away food premises". The premises were zoned for the purpose of the relevant planning ordinance "light industrial". Accordingly, the permission of the council, as the responsible authority, was necessary to enable them to be used for the appellant's purposes. There had been at the premises a petrol filling station: but at relevant times it had not been in use for some eighteen months. (at p677)
3. The respondents conduct a fried chicken and hamburger shop in a street adjacent to the premises. They, along with others who respectively conducted a fish and chip shop, a hamburger shop, an amusement parlor, a pizza shop, a billiard saloon and a milk bar, objected to the grant of such a permit. (at p678)
4. The council, having considered the application and objections, decided to grant the desired permit. The respondents appealed to the Tribunal. An adjournment of the appeal was sought to enable the council to reconsider the grant of the permit and in particular in that reconsideration to have regard to "competition and to traffic, and particularly pedestrian traffic, matters". (at p678)
5. The mayor of the City of Williamstown gave evidence of the further matters the council contemplated considering on its reconsideration of the application. They were the position and effect of clients of the proposed take-away food store, both children from the nearby school and residents from the main housing area in the vicinity using Melbourne Road during a reasonably high traffic period and the effect of competition upon a large number of vendors, presumably of foodstuffs, who operated in a shopping centre which the mayor described as "very precarious" with a great turnover of proprietors and lengthy vacancies of shop premises. He said the council was "worried that a highly efficient organisation may change the economic basis for some of the people who have been operating in the area for some time". (at p678)
6. The Tribunal declined to adjourn the appeal upon this ground. The chairman of the Tribunal, evidently with the concurrence of the other members, in so declining informed counsel for the parties - for each was legally represented - that in performing its function of reconsidering the application for a planning permit, it would consider any material additional to that which was before the council which the parties put before it. (at p678)
7. He said that the Tribunal felt "that the two matters mentioned by the mayor relating to traffic and competition" would be likely to be covered by the then appellants', the now respondents', submission; but that, if at the conclusion of the hearing it was felt that the matters had not been fully covered, the Tribunal would hear a request to make written submissions. (at p678)
8. The appeal proceeded. There was no contest between the parties before the Tribunal that the premises were physically suitable for the proposed use or that the amenity of the neighbourhood would be disadvantageously affected by that use. The contest before the Tribunal was substantially upon the two matters adverted to by the mayor. (at p678)
9. At the conclusion of the hearing of the appeal, the Tribunal made an inspection of the "area and the subject premises". It reserved its consideration of the matter. (at p679)
10. The statutory provision relevant to the appellant's application for a
permit is cl. 7 of the Planning Scheme Ordinance of the
Melbourne Metropolitan
Planning Scheme. It is as follows:
"(1) Subject to the provisions of this Ordinance, land within the zone
described in a Section of the Table to this Clause -
. . . (c) may subject to the permission of the responsible authority be
used for any of the purposes specified or included in
Column 4 of such
Section.
(2) The responsible authority having regard to the primary purpose for
which the land is zoned, the orderly and proper planning
of the zone, and the
preservation of the amenity of the neighbourhood may refuse its permission for
the use of land for any of the
purposes specified in Column 4 of a Section of
the said Table or may grant a permit subject to . . . conditions . . ." (at
p679)
11. Having read the transcript of the proceedings before the Tribunal, it is
quite clear to me that the Tribunal was not asked to
give written reasons for
the decision to which they would come. Section 22 (2) of the Act provided in
this respect:
"The Tribunal shall, if requested to do so by a party furnish him with a
statement of the reasons for its determination." (at
p679)
12. The Tribunal announced its decision some six weeks later, that is on 16th
November 1977. As much has been sought to be made
of the terms of this
announcement, I set out the relevant part of it:
"Having considered the submissions made by all the parties and having
inspected the appeal premises and the surrounding area
after the hearing, we
are of the opinion that to permit the proposed development and use would not
affect the amenity of the neighbourhood
and having regard to its previous use
and its present disuse and the existing uses nearby, the site is appropriate
for the proposed
use.
The decision of the Tribunal is that the appeal is disallowed and it is
directed that a planning permit be issued upon the
conditions set out in the
said Notice of Determination except condition 4 which is deleted and the
following substituted in its stead
. . . " (at p679)
13. The basis on which the order to review has been made absolute is to be
found in ground 5 (c) and (e) of the order nisi, viz.:
"(c) Effect of the
proposed use upon the economic viability of the adjoining area" and "(e)
Effect of the proposed use upon pedestrian
movement". (at p679)
14. Of course, if it is shown that a Tribunal such as the present, in making an order within its competence, has failed to take into account relevant matters, its determination can be reviewed, as in this case, upon an order to review. So much is a settled facet of the relevant jurisprudence. But that course cannot be taken unless it clearly appears that there has been a material error of that kind. Whether or not it has occurred is a matter of fact and not of surmise. Failure in expressing reasons for decision is a very unsure guide to the resolution of such a fact, though in some circumstances it may be indicative. But, in any case, such a failure to advert to some material circumstance, if it exists, must be weighed in the light of all the circumstances of the proceedings including the nature and extent of the charter of the Tribunal. (at p680)
15. In this matter, the Supreme Court fully advised itself of the matters to be considered in investigating the question whether or not the Tribunal had failed to take into consideration relevant matters. The Court correctly decided that no request for the statement of reasons by the Tribunal had been made and that the announcement of its decision was not a "statement made in accordance with the Act" of the reasons for the determination. Apart from the terms of the announcement of its determination there was no material to suggest that the Tribunal had not considered all that had been put before it in the hearing of the appeal. (at p680)
16. However, the Court decided to look at the announcement of the determination, as I think, as if it contained reasons for decision. Having examined the announcement from that point of view, the Court concluded that its terms established that the Tribunal had not taken into consideration what, in fact, were the only two matters litigated before it and in the light of which it had made an inspection of the area and the premises. (at p680)
17. In this approach and in its conclusion, the Supreme Court was, in my opinion, clearly in error. The announcement did not purport to contain reasons for a decision. In terms the announcement was the announcement of a conclusion, its terms being influenced by the terms of the planning ordinance relative to the application for the planning permit. (at p680)
18. In any case, even if the announcement could be regarded as the giving of reasons for the determination, the absence of any reference to the two matters, having regard to the course of the proceedings before the Tribunal, did not, in my opinion, warrant the conclusion that they had not been taken into consideration by it. (at p680)
19. Thus there was, in my opinion, no material before the Supreme Court on which it could properly be concluded that the Tribunal had not considered both the matters referred to in particular paragraphs of the order to review. (at p681)
20. Having formed a clear opinion as I have expressed it, there is no need for me to consider other questions which were discussed in the argument before this Court, including the question whether the Supreme Court, being convinced that the grounds of the order nisi to review have been made out, has none the less a discretion to refuse to make that order absolute. (at p681)
21. However, because a misapprehension as to the permissible scope of a planning authority's consideration in deciding whether or not to grant a planning permit ought not to be allowed to persist, I desire to say that it is my opinion that economic competition feared or expected from a proposed use is not a planning consideration within the terms of the planning ordinance governing this matter. Nothing said by my brother Stephen in Spurling v. Development Underwriting (Vic.) Pty. Ltd. [1973] VicRp 1; (1973) VR 1 ought to be taken as deciding otherwise. Here one of the two matters thought to have been overlooked by the Tribunal was not really a matter for consideration by the council or by the Tribunal. Restraint or prevention of economic competition is not, in my opinion, part of the orderly and proper planning of the zone to which cl. 7 (2) refers. The expression in ground 5 (c) of the order nisi, "the economic viability of the adjoining area", is at best ambiguous. If it means simply the effect of competition by the proposed use with existing uses of property in the area, it does not express a relevant ground. If it means that the proposed use will be destructive of the amenity of the neighbourhood, giving amenity a wide connotation, it may afford particulars of a general ground relating to the maintenance of the amenity of the neighbourhood. However, so far as appears, the former is the meaning attached by the parties to this particular ground. They were in agreement that the proposed use did not threaten the amenity of the neighbourhood. (at p681)
22. In my opinion, the appeal should be allowed, the order of the Supreme Court set aside and the order nisi to review be discharged. (at p681)
GIBBS J. I would allow this appeal. I have had the advantage of reading the reasons for judgment prepared by my brother Stephen, and the further reasons prepared by my brother Aickin. Subject to the qualification stated by my brother Aickin, which I would also make, I agree with the reasons of my brother Stephen and need add nothing to them. (at p681)
STEPHEN J. The detailed facts of this case appear in the judgment of the Chief Justice. The question which it raises is whether the absence from the determination of the Town Planning Appeal Tribunal of any reference to the only matters which were in actual contention before the Tribunal vitiates that determination. (at p682)
2. The respondent says that it does, that it discloses error of law in the sense that the Tribunal has failed to take account of relevant considerations, this being evidenced by the total disregard of those considerations in its written determination. (at p682)
3. It was the respondent's contention which found favour with the learned primary judge. His Honour concluded that when the Tribunal made its determination it did not have in mind the issues contested before it. His Honour relied for this conclusion upon the omission from the Tribunal's written determination of any reference to those issues and the inclusion in it of reference to two matters which had not been in contest at the hearing before the Tribunal. The appellant's case is that in all the circumstances it should not be inferred from the form of the Tribunal's determination that relevant considerations had in fact been overlooked or discarded as irrelevant: also some weight was placed upon the fact that no party before the Tribunal had required it, as they might have, to furnish a formal statement of the reasons for its determination. (at p682)
4. For the omission of reasons from a Tribunal's written determination to be significant that determination must, no doubt, be, at the very least, such a document as may be expected to contain some statement of the reasons for the decision arrived at. Only then will its silence on specific issues go any distance, as a matter of logical inference, towards suggesting that the Tribunal has failed to consider those issues. (at p682)
5. Where appellate administrative tribunals are required by statute to include in their decisions a statement of the reasons for arriving at them there will be little difficulty in assigning some significance to silence; it will at the least reveal a failure to comply with the requirement of the statute and may go so far as to impugn the decision itself, particularly where some statement of reasons does appear but omitted from it are considerations relevant to the determination of the matter in issue. (at p682)
6. However the present statute, the Town and Country Planning Act 1961 (Vict.), as amended, specifically provides, by s. 22 (2), that "the Tribunal shall, if requested to do so by a party, furnish him with a statement of the reasons for its determination." Section 22 (2A) then provides for the mode and time of making such requests. It is clear, and the learned primary judge so held, that in the present case no request was made for a statement of reasons. The presence of a provision such as s. 22 (2) must go a good way towards depriving a mere determination of the Tribunal, as distinct from a statutory statement of its reasons, of the quality which it might otherwise possess of being an anticipated source of the Tribunal's reasons for decision. When the legislative history is looked at the form of s. 22 (2) assumes heightened significance. When the concept of an Appeal Tribunal was first introduced into the legislation in 1968 the Tribunal was required, on determining any appeal, to deliver to each party "a statement in writing of the reasons for its determination" (s. 22 (2), as introduced by s. 14 of Act No. 7676). It was only in 1972 that, by s. 19 (1) (d) of Act No. 8380, the Act was amended to its present form, only providing for the giving of reasons by the Tribunal if requested by a party to do so. (at p683)
7. This effect of s. 22 (2) may, however, no doubt be counteracted by the conduct of the Tribunal. Thus there may be a well established practice of the Tribunal of invariably volunteering its reasons for decision in its written determinations; or else it may, in a particular determination, expressly state what were its reasons in that case. As I would understand his Honour's judgment, it was upon a combination of these two phenomena that he relied for his conclusion that the Tribunal's failure to refer in its determination to the matters in contest before it signified that it had omitted to give consideration to them in arriving at its decision. (at p683)
8. His Honour said that it was common ground between the parties that he should treat as the practice of the Tribunal that its reserved decisions contained "to a greater or lesser degree reasons for the decision". His Honour accordingly treated the Tribunal's written determination as an appropriate source to which to look for reasons for the determination itself: hence his Honour's numerous references to the Tribunal's determination as containing "the reasons" of the Tribunal, as constituting "the reasons given" by it and as being "its reasons". Combined with that was, I think, the fact that the determination did include what his Honour regarded as a statement of the Tribunal's reasons. One passage from his Honour's judgment reflects the influence upon his mind of each of these two factors: he observed that "The two issues on which the Tribunal expressed its opinion in its reasons were issues which were not contested by the appellants at the hearing". Thus his Honour both treated the written determination as the Tribunal's "reasons" and found in it an expression of what it was that motivated the Tribunal in reaching its decision. (at p684)
9. It is because I take a rather different view of each of these two factors that I have been led to a conclusion different from that of his Honour. I do not believe that the failure of the Tribunal to make any mention in its determination of the issues debated before it justifies the inference that it failed to have regard to those issues: there was, I think, no error of law revealed in the Tribunal's determination. (at p684)
10. The relevant paragraph of the Tribunal's written determination,
describing the process by which it arrived at its conclusion,
is as follows:
"Having considered the submissions made by all parties and having
inspected the appeal premises and the surrounding area after
the hearing, we
are of the opinion that to permit the proposed development and use would not
affect the amenity of the neighbourhood
and having regard to its previous use
and its present disuse and the existing uses nearby, the site is appropriate
for the proposed
use."
Its opening words are no more than descriptive of what the Tribunal has done,
it has considered the submissions made and has subsequently
made an
inspection. There follows the expression of two conclusions concerning the
proposed development, that amenity of the neighbourhood
will be unaffected and
that, having regard to certain matters, the site is appropriate to the use
proposed. Neither conclusion is
directly concerned with evidentiary facts but
rather with ultimate facts. Each finds it genesis not in anything that was
specifically
in contest before the Tribunal at the hearing but, rather, in the
terms of the relevant Planning Scheme Ordinance under which a permit
was being
sought by the appellant. That Ordinance provided that a responsible authority,
in exercising its discretion to grant or
refuse a permit, should have regard,
inter alia, to "the preservation of the amenity of the neighbourhood" and to
"the orderly and
proper planning of the zone", this latter concept clearly
enough extending to the appropriateness of the site for the proposed use.
(at
p684)
11. It follows that the Tribunal's decision makes no attempt to set out and adjudicate upon any factual issues, let alone give its reasons for any such adjudication. Instead it does no more than state the ultimate conclusions it has reached upon factors to which the Ordinance requires a responsible authority to have regard. That it should do this and no more is entirely in keeping with the legislation under which the Tribunal operates. Its role as an appeal tribunal is, so far as presently relevant, to reconsider afresh the outcome of applications previously made to responsible authorities and determined by them. In performing this role in the present case the Tribunal was necessarily concerned first and foremost with the criteria specified in the Planning Ordinance as governing the granting of permits: hence its reference to the amenity of the neighbourhood and to the appropriateness of the site for the proposed use. (at p685)
12. What it did about these criteria was to state its conclusions. In no real sense did it give reasons for its determination. Since its statement of these conclusions was therefore no partial statement of reasons, failure to refer to the evidentiary matters submitted to it by the parties provides no ground for an inference that it failed to give consideration to these matters. Nor does it provide any reason for doubting the Tribunal's statement that it had "considered the submissions made by all the parties". (at p685)
13. What then of the alleged practice of the Tribunal of giving reasons for its determinations whenever it reserves its decision? There are three matters to note as to this. First the practice which his Honour was asked to treat as common ground is described quite imprecisely as being that the Tribunal's decision should state "to a greater or lesser degree reasons for the decision". A mere statement of conclusions as to amenity and suitability of the site, as occurred in the present case, may well satisfy this description, being regarded as stating reasons "to a lesser degree". But perhaps the second matter to be noted constitutes the better reconciliation of this alleged practice with what in fact occurred in the present case, namely that when "reasons for the decision" are spoken of what is meant is no more than what were in fact given here, namely those ultimate conclusions as to amenity and appropriateness of the site which led to the Tribunal's disallowance of the appeal and were, in that sense, its "reasons". The third matter strongly supports this basis of reconciliation: like his Honour I have looked through reported determinations of the Tribunal, choosing a volume of reports roughly contemporaneous with the determination here in question (1976-1977) 6 VPA . Among these reported determinations are a number which are no more explicit than is the determination in the present case, stating, after appropriate introductory matter, only conclusions as to ultimate facts and then proceeding immediately to the Tribunal's determination. In the light of all this the reference to "reasons" in what was put to his Honour as common ground should be taken to extent to mere conclusions as to ultimate facts. (at p686)
14. In these circumstances I discern nothing in the Tribunal's written determination to suggest that it failed to pay regard to the matters which were the subject to debate before it. There is, on the other hand, much which would support the contrary view. First the Tribunal expressly says so when it observes that it "considered the submissions made by all parties". It is not as if it is a failure to have regard to some only of a number of relevant considerations which is complained of: the complaint is, in essence, that the Tribunal paid no regard to the only considerations which were debated before it. This being so there is no way in which the Tribunal's statement can be reconciled with the state of affairs for which the respondents contend, on their view its statement must simply be wrong. I am not, of course, to be taken as regarding that statement by the Tribunal as in any way capable of discharging satisfactorily an obligation to state reasons for its determination: it is enough in this regard to refer to what was said by Monahan J. in De Iacouo v. Lacanale [1957] VicRp 78; (1957) VR 553, at p 559 concerning the inadequacy of any such general statements. But here no such obligation was either imposed upon the Tribunal or voluntarily assumed by it and the statement is no more than a description by it of part of the process by which it reached its determination. It is in that sense that I have had recourse to it. (at p686)
15. The state of affairs which the respondents' contention necessarily involves goes much further than this however. It is clear from all the detailed information contained in the Tribunal's written determination that when it was written, following the hearing and an inspection of the locality, the Tribunal was under no misapprehension concerning the particular appeal with which it was dealing. It knew perfectly well what appeal it was disposing of. How then is it supposed to have ignored the only issues which were agitated before it? Its attention to those issues during the hearing and the active participation of its members in the debate upon them is quite inconsistent with any view that it wilfully ignored them as irrelevant. That they could have slipped the minds of the members I regard as equally improbable, especially in light of the detailed recall of the appeal generally and even of the hearing which the written determination discloses. (at p686)
16. However it is not the improbability of the state of affairs which the respondents' submission must involve which leads me to conclude that this appeal should succeed, although it certainly confirms me in that conclusion. I am, instead, content to rely on what is, in my view, the absence of any evidence that the Tribunal failed to take into consideration the submissions made to it at the hearing. (at p687)
17. There is one further observation to be made. The learned primary judge described one submission urged before the Tribunal, namely that the establishment of the appellant's proposed fried chicken shop would "adversely affect existing food shopping facilities" in the neighbourhood as being just such a consideration as I had earlier held, in Spurling v. Development Underwriting (Vic.) Pty. Ltd. (1973) VR, at pp 12-13 , to be a proper planning consideration. I would with respect, agree with his Honour; the significant word, quite vital to the nature of the submission to which his Honour referred, is "facilities". If the shopping facilities presently enjoyed by a community or planned for it in the future are put in jeopardy by some proposed development, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that appears to me to be a consideration proper to be taken into account as a matter of town planning. It does not cease to be so because the profitability of individual existing businesses are at one and the same time also threatened by the new competition afforded by that new development. However the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration. (at p687)
18. I would allow this appeal. (at p687)
MASON J. Subject to the qualification stated by Aickin J., I agree with the reasons for judgment prepared by Stephen J. (at p687)
2. I would therefore allow this appeal. (at p687)
AICKIN J. I have had the advantage of reading the reasons for judgment of my brother Stephen. I am in agreement with his conclusion and save as to one aspect with his reasons. (at p687)
2. That one aspect is that I have not looked at vol. 6 or any volume of Victorian Planning Appeals Decisions. With respect I do not consider it necessary or useful to do so. The Tribunal's determination in the present case is on its face no more than a statement of ultimate facts on matters required by the legislature to be found. It is not a statement of reasons. (at p688)
ORDER
Appeal allowed with costs.Order of the Supreme Court of Victoria (McGarvie J.) set aside and in lieu thereof order that the order nisi to review be discharged with costs.